The land in controversy herein was within the Mississippi and Pacific Railroad reservation, and lies near Midlothian in Ellis county, consisting of two surveys of 160 acres each, patented to George Stiles, one as the assignee of J. T., and the other as the assignee of W. W. Rawls, by virtue of his having purchased whatever rights the said Rawlses may have been entitled to as actual settlers thereon under the act of August 26, 1856, opening up said reservation to settlement, and the payment by him of the stipulated amount due the state. We think the evidence is sufficient to show that both of the Rawlses, prior to their transfer of whatever rights they had therein to George Stiles, were actual settlers thereon, and had caused said respective tracts to be surveyed and the field notes thereof returned to the General Land Office as prescribed by said act, but had not paid the 50 cents an acre due the state, and by the terms of said transfers said Stiles was required to pay same, together with the land office fees. The transfers above mentioned were made to Geo. Stiles under date of January, 1858, and he was married to Zilpah Stiles on the 25th of November of the same year, and the lands were patented to him as assignee of said parties on September 13, 1859, and November 23, 1859, respectively, he having paid at said times the purchase price thereof to the state, to wit, the sum of 50 cents per acre and the patent fees. This payment was made out of the community funds of himself and wife. After marriage he and his wife made their home upon said tracts of land, where they continued to live until his death, which occurred in 1886. There were no children born to this union, and he left no will. His widow, in about two years thereafter, married one Mullins, who *Page 1012 died before she did, leaving no children, and upon her death in 1909 she left a will, which was duly probated, devising these two tracts of land to B. F. Hawkins and Geo. Stell, appellees herein; and this suit was brought on January 15, 1910, by Sam Stiles, a brother, and Mrs. Jane Merrill, Mrs. Nancy Kemp, and Mrs. Sarah Rhodes, all femes sole, sisters, and Sam Henry Stiles, a nephew, the son of a deceased brother, originally joined as defendant, but subsequently became a plaintiff, as plaintiffs, against said Hawkins and Stell in trespass to try title to recover an undivided one-half interest therein, for partition thereof, and for rents. Defendants answered by pleas of not guilty, the statutes of three, five, ten, and four years' limitation as to the land, as well as stale demand and two years' limitation as against the rents. There was a jury trial, resulting in a verdict and judgment for plaintiffs for their one-half interest in the land as claimed by them and for rents, from which this appeal is prosecuted.
It is clearly shown by the evidence that during the marriage of George and Zilpah Stiles they both considered and treated this land as community property, and made a joint will under such belief. While there are many interesting questions raised by this appeal, which are fully discussed in briefs of counsel, and presented upon argument, we will, however, pretermit a discussion of all of them except the one raised by the fifth assignment, which complains of the action of the court in refusing to instruct a verdict in behalf of appellants, and which, if decided in their favor, is determinative of this appeal, rendering unnecessary a consideration of the other questions presented.
The contention of appellants is that the land in question was the community property of Geo. Stiles and his wife, and that upon his death, without issue, his wife surviving, it became her separate property, and she had a right to devise the same to them as was done, and that plaintiffs, therefore, had no interest therein; while the contention of appellees is that under the uncontroverted evidence in the case the land in controversy belonged to the separate estate of George Stiles, and at his death descended, one moiety to his surviving wife and the other to his collateral heirs, for which reason they were entitled to recover. The difficulty in deciding the question at issue is in determining when the title to the land in controversy vested, or, to be more explicit, to determine the inception of the title; because if the transfer from the Rawlses to Stiles vested in him title, or an incipient title, then the contention of appellees is well taken and should prevail. But is this true? The land was embraced in the Mississippi and Pacific Railroad Reservation. See 4 Gammel's Laws of Texas, p. 7 et seq., which land was opened to settlement by act of August 26, 1856 (Gammel's Laws of Tex. vol. 4, p. 474), which provides that "from and after the first day of January, 1857, what is known as the Mississippi and Pacific Railroad Land Reserve shall be subject to location and sale, as hereinafter prescribed." The second section of said act provides that all settlers on said land are entitled to purchase not exceeding 160 acres thereof at 50 cents per acre, upon the settler's having the land surveyed and the field notes returned to the General Land Office by the 1st day of January, 1858, as well as the payment of said 50 cents per acre therefor by said time. It is further provided by section 3 thereof that the holder of any genuine land certificate, bounty warrant, headright certificate or railroad certificate, shall, after the 1st of March, 1857, have a right to locate same within said reserve. And by section 4 the land commissioner, after the 1st of March, 1857, was required, upon the request of any party, to issue land scrip at 50 cents per acre, which might be located within said reserve, etc. This act was amended November 28, 1857, so as to extend the time of payment to October 1, 1859, but providing that the field notes should be returned by April 1, 1858. It was thereafter amended so as to still further extend the time for filing field notes until the 1st of January, 1859. See Paschal's Digest of Laws, vol. 1, pp. 844-846.
It is appellants' contention that no title vested in Geo. Stiles by reason of the transfer from the Rawlses, and that this act did not constitute the beginning or inception of his title (citing in support thereof Woods v. Durrett, 28 Tex. 430; Webb v. Webb, 15 Tex. 274; Wilkinson v. Wilkinson, 20 Tex. 237; Palmer v. Chandler, 47 Tex. 332; Williams v. Finley, 99 Tex. 468, 90 S.W. 1087; Mills v. Brown, 69 Tex. 244,6 S.W. 612; Lamb v. James, 87 Tex. 486, 29 S.W. 647; Rayner Cattle Co. v. Bedford, 91 Tex. 642, 44 S.W. 410, 45 S.W. 554; Simpson v. Oats,102 Tex. 186, 114 S.W. 105; Gafford v. Foster, 36 Tex. Civ. App. 56,81 S.W. 63; and Clark v. Altizer, 145 S.W. 1041), while appellee contends that by reason of the transfer from the Rawlses to Geo. Stiles, they, having previously surveyed the land and returned the field notes to the General Land Office, gave to him an inchoate title, which was subsequently perfected by payment of the purchase money to the state, and therefore he had such title, in contemplation of law, at the very time of such transfer, for which reason the land became his separate property, one-half of which, under the law, they were entitled upon his death to inherit, under the facts in evidence, in support of which they cite Welder v. Lambert, 91 Tex. 510, 44 S.W. 281; Creamer v. Briscoe,101 Tex. 491, 109 S.W. 911, 17 L.R.A. (N. S.) 154, and note, 130 Am. St. Rep. 869; Hasseldenz v. Dofflemyre, 45 S.W. 830; Porter v. Chronister, 58 Tex. 53; Norton v. Cantagrel, 60 Tex. 538; Auerbach v. Wylie, 84 Tex. 615, 19 S.W. 856, 20 S.W. 776. *Page 1013
Under the authorities last cited, if it is admitted that the inception of the title took place at the time of the transfer to Geo. Stiles, then the subsequent payment, though made after his marriage, will relate back to the date of said transfer, and constitute the land his separate property, subject to a charge in favor of the community for reimbursement; but this is not admitted, and is the point at issue. In discussing the question as to what interest was conveyed by the Rawlses' deeds, and in reviewing the cases cited by appellant, we quote from brief of counsel for appellant as follows:
"In Woods v. Durrett, supra, it was held that a settlement within this reservation before it was opened for settlement conferred no right, and that the opening act conferred none, except in accordance and on compliance with its terms.
"Webb v. Webb, supra, is a case where a man and his wife came to Texas in January, 1833. The husband, being entitled to a headright under the colonization laws as the head of a family, selected his land in his wife's lifetime, but the extension of the title was delayed by the refusal of the empressario to assent to it until the wife died. After her death the objections were withdrawn and the title was extended. It was held that the land was the separate property of the husband, because up to the wife's death nothing had been done upon which an equity in favor of her heirs could attach to the land, not even proof of right under the colonization laws having been made. In that case while the colonist, as the head of the family, was entitled to a headright, he had done nothing within the lifetime of his wife to bind the government to grant him any particular tract, though he had selected the tract he desired, and presumably had advised the government officials of his selection. While this very land was afterwards granted to him, the wife was held not to have acquired any interest in it. In other words, no consideration in which his wife was interested moved to the government during her lifetime, and hence she acquired no interest.
"In Wilkinson v. Wilkinson, supra, the husband and head of the family, acquired a conditional headright under the act of 1839, and complied during his wife's lifetime with the requirements of the law to entitle him to an unconditional certificate, but he did not take it out until after his wife's death, and the land was subsequently patented to him. It was held that the land was community property of the husband and wife, on the theory that these grants were to the family, to the wife as much as to the husband, and the wife, having performed her duty under the law of the grant, acquired her interest.
"Palmer v. Chandler, supra, is a case in which a pre-emption settler, after a survey of his land and occupancy of it for about two years, sold to another and took a note for part of the agreed consideration of the conveyance, which was attempted to be enforced as a lien upon the land. It was held that the original pre-emptor, by his survey and settlement, acquired no vested right in the land, and that his sale was an abandonment of his inchoate right to it, that the right of his vendee as a pre-emption settler received no aid by reason of the previous occupancy by the original pre-emptor, and that the transaction created no lien on the land. The case was held to be, in principle, indentical with others involving attempted sales of portions of the public domain by mere occupants. The logic of this decision, so far as we know, has never been denied or impaired, though the law, as it existed when the facts happened upon which the case is based, has been changed so as to allow pre-emptors, homesteaders, and purchasers of school lands to sell their holdings before acquiring full title. The principles of this case are recognized in Williams v. Finley, supra, and numerous other cases, holding, in substance, that in cases of sales of lands, the title to which is in the state, no lien is acquired, but where such sales are on credit, the value of improvements may be recovered as a personal claim. In Clark v. Altizer, supra, the same principle is recognized.
"In Mills v. Brown, supra, a widow, who was herself the head of a family, applied for a pre-emption, caused it to be surveyed, and paid the surveyor's fees. She then married, and with her husband occupied the land for the time prescribed by law, and after the death of the wife the land was patented to her heirs. It was held that the land was acquired, not by the survey, but by the occupancy of the husband and wife, and was their community property.
"Lamb v. Jones, Rayner Cattle Co. v. Bedford, and Simpson v. Oats, supra, hold that attempted conveyances of public lands pass no interest in the land, and do not create the relation of vendor and vendee, and furnish no obstacle to the acquisition of the land by the grantees in such conveyances in the manner pointed out by law for obtaining the state's title to such lands.
"In Welder v. Lambert, supra, which was decided in accordance with the Spanish law, it was held that where it appears that the origin of the title preceded the marriage, notwithstanding the fact that it was extended subsequent to it, the land became the separate property of the husband. In that case Power and Hewitson, impressarios, under their colonization contract with the state of Coahuila and Texas, acquired the right to a grant of lands on compliance with the terms of such contract. Power, then single, after partial compliance, subsequently married, and the performance of the contract was completed, and grant of the lands issued after such marriage. As between the heirs by this marriage and those by a subsequent marriage, *Page 1014 the land so acquired was his separate property; the community estate of the first marriage being entitled to a reimbursement for labor and expenditures in performance of the contract during the existence of such marriage. The gist of the holding was that Power's right, being founded on a contract that a partial performance on his part previous to his marriage, in contemplation of law, was the beginning or inception of his title, and therefore the extending of the title or its completion subsequent to marriage, did not make the property community.
"In Creamer v. Briscoe, supra, the same doctrine is announced. In that case, the husband and wife having settled on land for the purpose of acquiring homestead donation from the state, the husband died, and the wife married again before the expiration of the three years' occupancy necessary to acquire title; this being completed patent issued to the husband. Held that the land was community property of the husband and the first wife, and that as against her heirs the heirs of the second wife had no interest. The occupancy of the first wife for the purpose of establishing a homestead was the doing of such act as in law was regarded as the incipiency or beginning of the title."
These cases, we think, do not contravene the doctrine contended for by appellant. It seems to us that the Rawlses at the time of their transfers to Stiles had nothing more than the mere privilege of purchasing the land to the exclusion of any one else. They were living upon the land at the time it was opened for settlement; they had it surveyed, and returned the field notes to the land office, but at the time of the transfer had not paid the purchase price. The state could not compel them to pay this purchase money and accept the title, and they were at liberty at any time to abandon the land. In the pre-emption and homestead cases heretofore cited it required actual residence upon the land, with the requisite purpose, in order to establish the right of ownership, and without which no such right existed, notwithstanding the compliance with other portions of the statute.
In discussing somewhat similar statutes in 32 Cyc, p. 827, subd. 7, it is said: "The statutes formerly gave to settlers on public lands who had improved the same, a preference right to purchase such lands up to a certain amount at the minimum price of such lands, upon complying with the statutory requirements, which was termed the right of pre-emption. Pre-emption rights have been the subject of much litigation; but as the preemption laws have been repealed, save in a few particulars, it is deemed sufficient to merely refer in the note to a number of cases in which such rights have been referred to or discussed, and to draw attention to the fact that the right of pre-emption was nothing more than an offer by the government to an individual settled upon public land, which the latter might or might not accept, that the settler got no title until he had complied with the conditions of the law, and that if he was unable or unwilling to purchase at the government price at the time fixed by law, he had no further rights, but was liable to be turned out of possession as an intruder" (referring to numerous cases supporting and illustrating the text). See, also, 41 Century Digest, Title "Public Lands," §§ 65-71.
In Hutton v. Frisbie, 37 Cal. 475, it is said that: "After a settler has moved on and taken the prescribed steps to acquire preemption, but before he has perfected his right by payment, Congress has the power to withdraw the land from the operation of the general pre-emption laws, and deprive the settler of a right to perfect his claim and enter the land, and confer a right of entry upon another."
In Hemphill v. Davies, 38 Cal. 577, it is held that: "A declaratory statement for the purpose of pre-empting lands, or the register's certificate of the filing of such statement, confers no title. It is merely an offer to purchase, after the requisite proof of evidence, qualifications, etc., shall be made."
In Cothrin v. Faber, 68 Cal. 39, 4 P. 940, 8 P. 599, it is said that where a person "was permitted to enter on land, pursuant to proceedings initiated by him," at a period previous to such entry, "and to pay for it, receiving from the government the appropriate evidence of payment, he acquired a right which related back to the inception of the proceedings taken by him for its acquisition under the pre-emption laws, * * * and entitled him to the ultimate conveyance of the title to him."
Again in St. Onge v. Day, 11 Colo. 368, 18 P. 278, it is held that: "One who files a pre-emption claim, * * * and afterwards proves up and gets the receiver's receipt, is vested with title thereto, which title relates back to the date of filing, from which time he can recover against a person using or trespassing upon said land."
In Jackson v. Wilcox, 2 Ill. (1 Scam.) 344, it is held that: "The pre-emption laws grant to the pre-emptioner an estate in land upon conditions, which become absolute upon the performance of those conditions."
In Camp v. Smith, 2 Minn. 155 (Gil. 131), it is held that the pre-emption act of Congress of September 4, 1841, gives to certain occupants the right to purchase the lands they occupy at the minimum price, to the exclusion of all others. The title depends upon the purchase as soon as made, like the title of any other purchaser, and not upon a previous entry and occupation.
In Grand Gulf R. Banking Co. v. Bryan, 16 Miss. (8 Smedes M.) 234, the court says; "A mere right of pre-emption is not a title; it is only a proffer to a certain class of persons that they may become purchasers, if they will; without payment, or an offer to *Page 1015 pay, It confers no equity, and only confers one where the party has consented to accept the offer by payment, or by claiming the benefit of the law in the proper manner, within the required time." The same doctrine has been announced by the Supreme Court of the United States in Hutchins v. Low, 15 Wall. 77, 21 L. Ed. 82; Frisbie v. Whitney, 9 Wall. 187, 19 L. Ed. 668.
In Bray v. Ragsdale, 53 Mo. 170, it was held that: "A person settling upon the land under a pre-emption obtains no title till he has complied with the conditions of the law. * * * Till he fulfills the prescribed conditions of the law, the title remains in the government. He may abandon the pre-empted lands at any time, and then there could be no pretext that he had either a legal or an equitable seizure." This was a case in which the defendant's pre-emption was sought to be levied upon and sold as an interest in land, and the court held that it could not be done.
In Bowers v. Keesecker, 14 Iowa 301, where an intestate had established his right to pre-empt a city lot under an act of Congress, but had paid no money, nor obtained a duplicate receipt, or other evidence of title to the property, it was held that he was not invested with an equitable estate, and that his administrator had power to sell and convey the same as personalty.
The pre-emption laws of the United States and the other states from whose decisions we have copied the above extracts, appear to be dissimilar to our pre-emption law, in that under them payment of a stipulated amount as purchase money, as well as occupancy, proof of settlement, etc., was required, while under our law no payment was necessary, for which reason we think their holdings should be persuasive in the instant case, because the statute opening up this reservation required not only settlement, survey and filing of field notes in the land office within the prescribed time, but, in addition thereto made it necessary, before title should vest, that the settler should pay a stipulated amount as purchase price. We are constrained to believe that under this statute no title could be acquired unless its terms were complied with; that three things were essential to obtaining title on the part of the Rawlses, or those who claim under them, to wit, they must have been settlers, they must have had the land surveyed and the field notes returned to the land office, and must, in addition, have paid the purchase money. Without the concurrence of these three elements, no title vested; and the mere surveying and filing of field notes was not the inception or origin of title, as contended by appellees, but furnished, at most, merely a basis for the privilege of purchasing. It will be recalled that after this reservation was opened for settlement, other persons were granted the right to purchase scrip at the same price per acre as charged actual settlers, which they might thereafter locate upon land within said reservation, upon the conditions imposed by the statute; but the actual settler was given a preferential right to purchase, provided he surveyed the land, returned the field notes to the land office, and thereafter, within the stipulated time, paid the commissioner therefor. The state was under no obligation to grant this right; it was a mere privilege extended to the settlers on the land at the time it was opened for settlement and sale, out of regard for the fact that they had settled and improved the land. This was a mere gratuity. If the settler saw fit to accept and comply with the terms of the statute within the time prescribed, then it offered to convey the land to him in preference to any other person wishing to purchase. There was not, in advance of such compliance, any right acquired by the settler. He was not bound to accept; had the absolute right to abandon the land at any time and refuse to comply with the state's offer. No benefit had inured to the state, and it was therefore not even morally bound, before the payment of the money or tender thereof, to make title to the settler. Can it be argued that an incipient title is a result of a mere partial performance of the conditions imposed by the state for the vesting of title. It is true that, without the performance of the first two conditions, no preference was even granted; but it is likewise true that, without the paying of the money, no actual right or title vested. Others had the right to buy without such con ditions, by merely paying the purchase price, giving the actual settler a mere preference to purchase the tract upon which he settled. A failure to exercise this right of purchase, after performing the first two conditions within the prescribed time, terminated this privilege. Consequently we think no right to the land in question began or sprang into existence until all three of the conditions were complied with; and therefore all these requirements, in our judgment, were conditions precedent to the vesting of title in the Rawlses or their transferee.
We therefore hold that no title vested in George Stiles until he paid the purchase money, which is shown to have been subsequent to his marriage and out of community funds, and for which reason it follows that the property in question at the time of his death was community property between himself and his wife, Zilpah, and therefore there being no issue of said marriage, became her separate property, which she had the right to bequeath by will. Hence it becomes our duty to render such judgment as the court below should have rendered; we therefore reverse the judgment of the court below and here render judgment for appellants.
Reversed and rendered.