The lands in controversy were located in or prior to the year 1845, by John W. Smith and Enoch Jones, by virtue of the land certificate under which it was subsequently patented, and their ownership of the certificate at the time of its original location is a conceded fact.
John W. Smith died sometime after the certificate was located, but during the year 1845, and his widow, Mrs. Lee, became the administratrix of his estate sometime in the year 1847, and so continued until the year 1856.
At sometime prior to February 26, 1852, Enoch Jones and the administratrix withdrew the certificate from the survey in controversy and located it upon a part of the grant of land made to the Baron de Bastrop, in Comal County; but no right was so acquired, presumably because the location was made on land not subject to location, and in 1861 Enoch Jones obtained a duplicate of the certificate and relocated that on the lands in controversy.
In 1852, Mrs. Lee, as administratrix, acting under order of the Probate Court, sold her land in Comal County located by virtue of the certificate, and Enoch Jones bought at that sale, perhaps, the greater part of it; and on the right to the certificate thus claimed to have been acquired, and its relocation on the lands in controversy, rests the claim of the heirs and vendees of the heirs of Enoch Jones. *Page 39
Plaintiffs are the heirs and widow of John W. Smith.
The judgment held by the Court of Civil Appeals to have adjudicated the right of the parties was rendered in a suit instituted on July 27, 1854, and the lands in Comal County were sold in May, 1852; so as to them there was no litigation between the parties, while the lands in controversy were directly involved in the litigation.
Under those facts, we all agree that any right existing in Enoch Jones to the lands in controversy, at the time suit before referred to was brought, and up to its final termination, was adjudicated, but that adjudication could not affect any right subsequently acquired by him.
We further agree, if the floating of the certificate from the lands in controversy by Jones and the administratrix was lawful, that he acquired by the purchase of lands in Comal County on which the certificate was then placed an interest in the land certificate equal to one-half the acreage he then bought, and that upon relocation of the certificate he would be entitled to this interest in addition to the one-half owned by him at the time the lands in controversy were originally located.
If, however, the floating of the certificate was illegal, I hold, that as between the parties their rights should be determined as though the certificate had never been floated; and I do not understand the majority to hold differently, though it may be contended, that although the floating of the certificate may have been illegal at the time this was done, yet that Enoch Jones acquired the better right to some interest in the certificate by virtue of his purchase of land in Comal County, if subsequently to the floating of the certificate from the land in controversy there was a failure to have the land surveyed and the field notes returned to the General Land Office in accordance with the Act of February 10, 1852. Pasch. Dig., arts. 4562, 4568.
The record leaves it uncertain whether the lands in controversy had been surveyed and the field notes returned to the General Land Office at the time the certificate was floated. That a valid location was made on the land in controversy is a conceded fact in the case; the record speaks of the land as surveyed land, and in the list of property belonging to the estate of John W. Smith, filed by the administratrix in the proceeding in the Probate Court for partition, the land was declared to be patented land.
For the purpose of presenting my views on the legal questions involved, let it be conceded that Enoch Jones and John W. Smith had done nothing prior to the death of the latter to secure the land except to make a valid location, and that between the time of the death of Smith and the floating of the certificate by Jones and the administratrix nothing further had been done.
Then we have a case in which no forfeiture of the rights acquired by location had occurred under any law at the time an attempt was made to *Page 40 float the certificate; a case in which a forfeiture of right by failure to have a survey and to return the field notes to the General Land Office could not have occurred, under the Act of February 10, 1852, before February 10, 1853, at least one year after the certificate was placed on land in Comal County; and we have further a case in which, had there been failure to comply with the act before referred to, the right of relocation was secured by the act itself.
Thus it is seen that no right to the lands in controversy acquired by location had been lost at the time Jones and Mrs. Lee attempted to float the certificate, even if it be conceded that nothing more had been done than to make a valid location; and as the rights of no third person intervened, the patent subsequently issued to the original grantee of the certificate for the same land under the relocation as was embraced in the original location of the same certificate, no suspicion as to the validity of the original location could arise even in the mind of a seeker for some fact to give validity to the act of Jones and Mrs. Lee in placing the certificate on land in Comal County.
If the certificate was not legally floated, the lands having been at last patented under it, the rights of the parties in the land must necessarily stand as did the right to the certificate.
Smith owned one-half of the certificate and Jones owned the other when they made the location, and such was and is the interest in the land of persons claiming through them respectively, without reference to the judgment held by the District Court and the Court of Civil Appeals to operate as an adjudication of the rights of the parties; for in such case the judgment and right would correspond, in the absence of equities in the land between Mrs. Lee and Jones.
For the purposes of this case, let it be conceded that prior to the Act of August 30, 1865, persons acting in their own right might lawfully float a land certificate located on land subject to appropriation by it, and thereby might abandon a location, and thus reacquire the right to acquire other land by virtue of it; then the question arises whether Enoch Jones and Mrs. Lee, acting together or separately, in personal right or in representative capacity, had legal right to float the certificate, and thus abandon any right the estate of John W. Smith or his heirs had to the land.
The Court of Civil Appeals held that the administratrix had no such power, and in this holding I concur; and further submit, that Enoch. Jones and Mrs. Lee had no such power, even though Mrs. Lee, by virtue of her community right, subject to payment of debts of the estate of her deceased husband, may have been the owner of an undivided one-fourth of the land, and Enoch Jones of an undivided one-half.
Smith and Jones owned the land certificate, and in the lifetime of the former located it on the land in controversy, whereby they became tenants in common, each owning an undivided half-interest. *Page 41
By the act of location, each impliedly contracted with the other that they would merge the certificate in the land in controversy, and thus each acquire an undivided half-interest in the whole.
Having thus acquired a common and equal interest in the land, neither could lawfully have floated the certificate, nor any part of it, and thus have abandoned a part or the whole of the land without the consent of the other. Johns v. Pace, 26 Tex. 270 [26 Tex. 270]; Smith v. Tucker, 25 Tex. 605; Kirby v. Estill, 75 Tex. 484; Abernathy v. Stone, 81 Tex. 430.
The same reasons which would deny such a right to Jones would deny it to Mrs. Lee, in so far as she might base such a right on her community interest in the land; for as against her as well as Jones the rights of the heirs of Smith, as well as of the creditors of his estate, had attached to the land in controversy.
While it has been held that each owner of a specific part of a land certificate may locate to the extent of his own interest, and is under no obligation to locate so much of a certificate as belongs to another, that rule can have no application where land has been located to the extent of the certificate for both owners; for each then becomes entitled to an undivided equal part of the whole, and one by floating the certificate, or a part of it, can not divest any right acquired by the other, unless by his consent.
In this case the cotenants attempted to divest the right of all others having an interest in the land; and that they could not do this is too clear, unless there be some peculiarity in this case which takes it out of the rules which govern the powers, rights, and duties of tenants in common, or unless Mrs. Lee, as administratrix, had power, in behalf of all persons interested in the estate of her deceased husband, thus to part with title to property belonging to his estate.
That the location of a valid land certificate on land subject to location gives right in the land, is not an open question in this court. Howard v. Perry, 7 Tex. 266; Sherwood v. Fleming, 25 Texas Supp., 428; Wright v. Hawkins, 28 Tex. 452; De Montel v. Speed, 53 Tex. 339; Nolan County v. Bateman,54 Tex. 163; Abernathy v. Stone, 81 Tex. 434.
Until located, a land certificate is personal property; "but when located, it loses this character. It then attaches to the land, and becomes a chattel real, and can be assigned and transferred by parol no more than the land itself. Instead of being merely property of itself, it is, like a deed, the evidence of title to the land upon which it is located; and although its sale or assignment subsequent to location, if in writing, but not otherwise, may in equity be held to operate as a transfer of the land, it is the land and not the certificate which is the thing sold." Simpson v. Chapman, 45 Tex. 566; Renick v. Dawson, 55 Tex. 107; Porter v. Burnett, *Page 42 60 Tex. 222; Hearne v. Gillett, 62 Tex. 25 [62 Tex. 25]; Adams v. Railway, 70 Tex. 275.
Under the law as it was when the transaction in question occurred, a location gave such right as was sufficient to maintain an action of trespass to try title. Pasch. Dig., art. 5303.
The certificate being merged in land at time of death of John W. Smith, had the administratrix of his estate lawful power to abandon the right thus acquired; to float the certificate, and thus change the character of right given through it from right to realty to right in a mere chattel? Or had she the power to abandon the land selected and appropriated by the intestate, and through the certificate to select and acquire other lands?
An administratrix is but a trustee clothed with very limited powers, to be exercised for the sole purpose of paying the debts of the intestate, and returning so much of the estate as is not required for that purpose and the necessary expenses of administration to those who, under the law, are entitled to it.
She has no power to exchange property belonging to the estate for any other property; and this is just what she attempted to do when she assumed the right to float the certificate from the land in controversy. Williams v. San Saba, 59 Tex. 444. If she could legally have done this, the first effect of the transaction would have been to exchange the land for the certificate, and the second to merge the certificate in other land. This she could not do for the want of power; and the power was not conferred by law, simply because it was not a power necessary to enable her to carry out the purposes for which she was clothed with a trust. The rights of heirs and creditors vested on the death of the intestate, and they could not thus be destroyed.
The proposition that an administrator has power to exchange a tract of land belonging to an estate confided to his care and administration, for some other land, would not be asserted in a court of justice; but the transaction in question, in my opinion, was, in substance, an attempt to do this in a most objectionable manner.
This case well illustrates why no such power was given or ever ought to be conferred on an administrator.
Smith was practically the owner of the land in controversy at the time of his death; there was no obstacle to the acquisition of perfect title; but the administratrix, acting, no doubt, as she thought, for the best interests of the estate, concluded that she would relinquish right to that, and though the certificate by which it was held would acquire the same quantity of land perhaps more valuable; she made the experiment, and placed the certificate on land already appropriated, and thus acquired no land, while if her intention could have been given effect, the estate would have lost the land in controversy. If this had occurred after the passage of the *Page 43 Act of August 30, 1856, the certificate also would have been lost. Pasch. Dig., arts. 4574, 4575.
It is useless to discuss the existence of such a power.
The case of Poor v. Boyce, 12 Tex. 440, may be cited as a decision in favor of the existence of such a power, but the facts of that case make the opinion wholly inapplicable to this.
In that case it appeared that Mrs. Poor, after the death of her first husband, McRea, procured, as the representative of the estate, a land certificate for a league of land, and there was some evidence to the effect that this she subsequently located on the tract of land then in controversy, situated in Bowie County, but there was nothing in the office of the surveyor to show either a location or survey.
It was claimed that this occurred in 1838, and after the marriage of Mrs. McRae. The certificate was subsequently located in Bexar County, a survey made and returned to the General Land Office, and the rights of third persons had attached to the land in Bowie County when action was brought by the heirs of McRae and by his widow to recover that land, which had been sold by Mrs. McRae under order of the Probate Court, and one-half of it by herself, acting, as the decision tends to show, in her own right.
This court held, that if the plaintiffs ever had right to the land, this passed by the sales referred to; but declared if right to the land ever existed, this was abandoned by the acquisition of land in Bexar County by virtue of the certificate.
It was said in that case, in reply to the suggestion that the survey in Bowie County vested an interest in the heirs which could not be divested by the act of the administratrix in locating and acquiring land under the certificate in Bexar County, that she "had the same right to raise the location for the purpose of making one elsewhere which she may have deemed more advantageous to herself and the heirs, that she had to apply for and obtain the certificate and make the location in the first instance."
All this may be conceded, for the purposes of this case; but in that the right to the particular land did not vest in the heirs of McRae at his death, for at that time facts only existed which gave right to a certificate, while in this case the right to the land in controversy vested in the ancestor while alive, and on his death descended to his heirs, and creditors of his estate were entitled to enforce their claims against it.
Holding as Mrs. McRae did the certificate in common with her children, it may be that it was her right to acquire land under it; but the power to do that or to abandon a location made by himself would not have authorized her to abandon land acquired by her husband.
The difference between the right of one interested in a land certificate to locate it, and thus bind another having a like interest, and the right of one having an interest as tenant in common to land to abandon a location *Page 44 without consent of the other cotenant, is recognized in Johns v. Pace, 26 Tex. 272; but I do not wish to be understood to hold that one having only an interest in a land certificate could bind his co-owner by a location of the entire certificate, for the rule seems to the contrary (Farris v. Gilbert, 50 Tex. 366; Glasscock v. Hughes,55 Tex. 479); and if this be so, would clearly demonstrate the want of power either in the administratrix or Jones in any manner to bind the interest of the heirs of Smith.
If in fact the land in controversy had not been surveyed and the field notes returned to the General Land Office, then a failure to do this, in compliance with the Act of February 10, 1852, must have operated as an abandonment of the land, and it would have been subject to location by some other person; but as no such forfeiture of rights had occurred when the attempt to float the certificate was made, could Enoch Jones acquire any interest in the land by a wrongful act in which he participated?
The land having been located, the right to have the land attached; and it was the duty of the administratrix to do whatever was necessary to preserve that right and property to the estate, just as much as it would have been to preserve the land had it been patented, or to preserve any other property belonging to the estate; although it might not have been her duty as administratrix to locate the certificate if it had come into her hands unlocated.
The duty to preserve the estate, the nature of the trust she assumed fixed upon her, and it was fixed also by express statute. Pasch. Dig., arts. 1329, 1340.
The relationship between the heirs of John W. Smith and Enoch Jones, resulting from a conceded cotenancy, imposed upon the latter at least an obligation to observe good faith, and to do no act that would destroy their right, if it did not go further, and demand of him affirmative action if this became necessary to preserve the common title.
The right of Smith and Jones to the land accrued at the same time, and by their voluntary act in locating it by virtue of a certificate in which they had equal right; and so arising the right, it ought not to be deemed that their relations would be different from that of persons who become cotenants by descent.
It has been said, that "Tenants in common by descent are placed in a confidential relation to each other, by operation of law, as to the joint property, and the same duties are imposed as if a joint trust were created by contract between them, or the act of a third party. It may be different when they claim title by distinct purchases, even of the same original title. * * * Being then interested with and for each other in the property, each one is prohibited from acquiring rights in it antagonistic to the others. * * * Being associated in interest as tenants in common by descent, an implied obligation exists to sustain the common interest. *Page 45 This reciprocal obligation will be vindicated and enforced in a court of equity as a trust. These relations of trust and confidence bind all to put forth their best exertions, and to embrace every opportunity to protect and secure the common interest, and forbid the assumption of a hostile attitude by either; and therefore the purchase by one of an outstanding title or an encumbrance upon the joint estate, in his own name, will enure to the benefit of all; but they will be compelled to contribute their respective ratios of the consideration actually given." Tisdale v. Tisdale, 2 Sneed, 596.
If, however, no such trust relation on the part of Enoch Jones existed still, under the settled rules of equity, through the wrongful act to which he was a party he could acquire no interest in the land in controversy which belonged to the estate of John W. Smith at the time attempt was made to float the certificate.
The wrongful dealing with a trustee, if he had acquired the legal title, would have fixed a trust upon it in his hands. The floating of the certificate, as before seen, was wrongful, and in violation of the rights of the heirs of the estate of John W. Smith, as well as of the rights of creditors of his estate; and this was the first and only step by which it can be contended that their right was lost or in any manner abandoned.
The claim of plaintiffs in error is, that Enoch Jones became the owner of the interest or a part of the interest in the land certificate owned by the estate of John W. Smith, which he subsequently relocated on the land in controversy, whereby he acquired a like interest in the land; or in other words, that he bought such interest in the certificate when he bought land on which it was wrongfully placed by himself and Mrs. Lee, and that on its relocation he has an equivalent interest in the land.
This, in principle, in no respect differs from any other case in which a person purchases property from a trustee with notice that the trust is being violated; and the rule is universal, that such a purchaser takes the property charged with the same trust as was it in the hands of the trustee. Wethered v. Boon,17 Tex. 143; Kennedy v. Baker, 59 Tex. 154 [59 Tex. 154]; Perry on Trusts, 217, 225; Pome. Eq., secs. 688, 770, 1048.
All the power Mrs. Lee exercised or attempted to exercise throughout the whole transaction was that of a trustee, of whose powers Enoch Jones was fully advised.
It does not appear when the Probate Court ordered the sale of the land in Comal County, which was shown to have been located under the certificate by virtue of which the land in controversy was located, that the latter fact was in any manner made known to the court; and it ought to be presumed, had that fact been made known, that it would not have ordered the sale of the land in Comal County, in so far as it was held by virtue of that certificate, but would have only ordered the sale of such right as the estate held under the grant to the Baron de Bastrop; for we *Page 46 can not presume that the court would have ordered a sale by which the rights of the heirs of John W. Smith or the creditors of his estate could possibly be divested from the land in controversy otherwise than by an order to sell it; and the order to sell the land in Comal County, with a view to pass title to certificate by which the land in controversy was held and ultimately patented, and a sale under such order, would have operated a fraud on the heirs of John W. Smith as well as upon creditors of his estate, by reason of which no one cognizant of the facts could have acquired right to the certificate.
If when the certificate was removed from the custody in which it should have remained, instead of locating it on the land in Comal County, the administratrix had sold it under order of the Probate Court to one having notice of all the facts, it is too clear that such a person could not thus have acquired any right to the certificate; and this is so simply because the certificate was merged in the land in controversy, and nothing short of a sale of that could have passed title to the certificate. East v. Dugan, 79 Tex. 330.
Seemingly conscious that the sale of the land in Comal County did not pass title to the land certificate, the parties, throughout all the subsequent litigation in the Probate and District Courts, treated the land in controversy as the common property of Enoch Jones and the estate of John W. Smith.
The parties may have believed, and doubtless did believe, that they were acting for the best interests of all; but good intentions can not divest legal rights through procedure to which the law does not give that effect; and although it might be held that the sale of the Comal land would have passed title to the land certificate to one not having notice of its former location, still such was the relationship of the parties to each other and to the land in controversy, that no such right can be held to have vested in Enoch Jones, who had full notice of and participated in the wrongful act whereby it is claimed that he acquired title to the certificate.
If these conclusions be correct, it necessarily follows that the land belonged to Enoch Jones and the estate of John W. Smith, in equal parts, when the judgment held by the District Court and the Court of Civil Appeals to be an adjudication of the rights of the parties was rendered; and under such circumstances, even if equities in the land growing out of the common ownership and joint action of Mrs. Lee and Enoch Jones possibly may have existed as between them, these were all cut off by that judgment.
I think the judgment ought to be affirmed; but as the intervenors are not before the court, what their right may be it is not necessary to consider. *Page 47
If the holding of the majority on the questions considered be correct, then I concur in the holding that the judgment should be reversed and the cause remanded.
Delivered April 27, 1893.
H.B. Barnhart and W.M. Walton argued motion for rehearing, for defendants in error.