Sewell v. Laurance

Opinion by The transcript in this cause was filed in the Supreme Court April 1, 1878.

At the present term appellee has filed a motion to dismiss the appeal upon two grounds:

First. Because the affidavit filed in lieu of an appeal bond does not describe the judgment.

Second. Because the record does not show that the affiants were parties to the suit.

As to the first objection, we think the record contains enough to ■give the Supreme Court jurisdiction, and that is sufficient.

In the affidavit the affiants, after giving the style of the cause, •state^that they are parties defendant to the above entitled cause, *410against whom judgment has been rendered in favor of plaintiff,

her and sign their names as follows: L. A. Sewell, Susana X Rutherford,.

her - mark

Permuna X Rutherford. Among the names of the defendants in.

mark the record we find Adeline. Sewell, Susan Rutherford and P. A.Rutherford.

The motion to dismiss should be overruled.

The first assignment of error questions that part of the- charge-which instructs the jury that a land certificates a vendible commodity, and may be disposed of by sale and delivery by parol, and the-purchaser acquired a title to the certificate, and any land that would be'acquired by virtue of such certificate, and it would be immaterial whether the certificate was located or unlocated.

The first part of this charge, to the effect that land certificates-are personal property, and pass by delivery, is certainly correct. We have a number of decisions which fully sustain this part of the-charge. (Stone v. Brown, 54 Texas, 330; Johnson v. Newman, 43 Texas, 640; Cox v. Bray, 28 Texas, 247; Randon v. Barton, 4 Texas, 292.) The cases, however, refer, as a general rule, to unlocated certificates. °

The unlocated certificate is not land. It merely gives to the-holder the right to acquire land. As soon as it is located, the right of the holder attaches to the particular land upon which the location is made, and the property becomes real estate, and in order topase the title the conveyance must be in writing. But the judge charged-that- the delivery of the certificates would pass the title to-the land acquired by means of them, whether they were at the time located or not.

This is questioned by the assignment, and, as a general rule, it is not correct. (Simpson v. Chapman, 45 Texas, 561.) But to determine upon the correctness of a charge, we should consider it not as-a general proposition, but in its application to the- facts proven. And when so considered, our opinion is that the charge was not erroneous. The general rule above stated is based upon the .almost universal practice that the .certificate shall b,e located by or for. the owner. As soon as this is done, the right, of the owner attaches, tq the land, and all subsequent transfers must beau writing.

In the .present' ¡case, the certificates (those which were located, *411fore the final delivery) were not located by or for Sewell and wife, or either of them, or for the purpose of obtaining the land for therm. They were located by the plaintiff, pending a negotiation for their purchase, and either after or contemporaneously with the payment of a part of the consideration, and with the intent that the land should become the property of the plaintiff. Whether the location was actually madé a few days before or a few days after the bargain was finally consummated is not perfectly certain, nor do we deem it material. The transaction was not called in question until many years after it had taken place, and until Sewell and his wife had both been dead a number of years. Uo living witness could give the precise dates of the different events. Resort was had to-the dates of certain records and private papers to determine the matter. The records of the county surveyor showed that a part of the land had been located on the eighth day of March, 1855, and a part of it more than a year afterwards. An old note of plaintiff’s was hunted up, after a protracted and rather curious search. This note had been délivered by him to Sewell, and was apparently for a part of the purchase money. The note was dated March 17, 1855. The inference was that this latter date was the day of the sale, and that, as a part of this property had. for the space of seven days been real estate, it could not pass by the delivery of the certificates. The defendants therefore stand upon their legal rights, and insist that they are the owners of this land.

One of the witnesses, however, who was present on the seventeenth of May, states that before that time plaintiff had paid a part of the consideration, had the certificates in his possession, had sold to witness a part of the land, surveyed it, and that on the-seventeenth day of May Sewell and his wife made a deed to witness in. pursuance of plaintiff’s sale to him.

Under all the circumstances, we think that the delivery of the certificates by Mrs. Sewell on that day was only the end of a negotiation which had been pending for some time, and that the title passed.

This might seem sufficient to dispose of the case; but appellants-insist that Mrs. Sewell was a married woman; that her interest in the land of certificates was her separate property, and, whether the property were real or personal, the conveyance must have been in. writing and acknowledged by her upon privy examination. (P. IX 1003.) •

*412It is true that the statute, by its terms, seems to apply to personal as well as real property; but the Supreme Court, in passing upon a case where the wife had disposed of personal property without privy examination, said that the statute did not expressly declare absolutely void any other mode of conveyance. It great object seems to have been to secure freedom of will and action upon the part of the wife. When this is clearly shown, and the transaction commends itself, in point of equity, to the conscience of the court, the conveyance will be sustained, notwithstanding the want <of privy examination. (Womach v. Womach, 8 Texas, 307.)

Suppose we admit that the contract was not binding upon Mrs. Sewell, and that she might, within a reasonable time, have had it set aside upon restoration of the purchase money, still it does not follow that the right would survive to her descendants for an indefinite period of time.

The case may be summed up thus: The plaintiff made this qiurchase in March, 1857. The verdict establishes the fact that he paid the consideration. For more than twenty years he was occupied with his endeavors to perfect the title, which he finally accomplished by buying out and thus quieting some opposing claims. A quarter of a century after the original purchase the heirs of the vendors, who have meantime done nothing towards procuring and perfecting the title, come forward and ask that the land, with its accumulated value from the labor and expense of the plaintiff, be decreed to them, because their grandmother did not sign a deed and acknowledge it properly. And they do not propose to make the ■slightest return to the plaintiff. To state such a proposition is to answer it. (See Hurt v. Turner, 9 Texas; Wells v. Alexander, 21 Texas.)

Our opinion is that the judgment should be affirmed, and it is so ■ordered.