On Motion for Rehearing. The able presentation of the view of this case adverse to that entertained by the majority of this court, set forth in the dissenting opinion of Mr. Chief Justice KEY, as also the zeal and evident sincerity with which learned counsel for appellees have presented their motion for a rehearing, constrain us to write an additional opinion herein.
Mr. Chief Justice KEY, in the opinion referred to, places much stress upon the fact that it has always been the policy of this state to encourage the settlement of its lands. True, but it has never been the policy of this state to encourage persons to occupy lands which it has granted or reserved to others. Such were the lands in controversy when the Rawlses settled upon them. They were in the Mississippi and Pacific Reservations, and locations upon them by pre-emptors or others were contrary to law and void. Sherwood v. Fleming, 25 Tex.Sup. 408; Woods v. Durrett, 28 Tex. 430. This would seem to be a sufficient answer to the argument as to public policy; but it may be further observed that the act of 1856, opening this reservation to sale, does not require settlement as a condition of purchase, and does not require continued settlement by those who were given preference rights to purchase, nor even that they should be settlers on the land at the date of such purchase, but only that they should have been such settlers when the law was passed. Gammel's Laws of Texas, vol. 4, p. 474.
Did the Rawlses have any title to the land in controversy? If not, they could convey none. It is well settled that an occupant of public land can convey no title, if he has none himself. Wheeler v. Styles, 28 Tex. 240; Rodgers v. Daily, 46 Tex. 578; Palmer v. Chandler, 47 Tex. 332; Swetman v. Sanders, 85 Tex. 294, 20 S.W. 124.
Title to land may be acquired by gift, devise, inheritance, limitation or purchase. None of these methods could apply to the Rawlses except the latter. Did they ever purchase these lands? If so, when? It has frequently been said that whether land be separate or community property will depend upon whether the owner was married or single at the inception of his title. What is meant by "inception of title"? Title means ownership, either equitable or legal. Equitable ownership means a present title in land which will ripen into legal ownership upon the performance of conditions subsequent. Inception of title is title. It is the beginning of a contractual relation which entitles a party to the land upon compliance with his part of the contract. But there must be a contract, express or implied, by which two or more parties, for a valuable consideration, have agreed to do or not to do some particular thing. A mere offer, before acceptance, or a gratuitous promise is nudum pactum, and not a contract.
All lands acquired under the colonization or pre-emption laws of this state were acquired by contract of purchase; the price paid being the settlement of the land and such occupancy as the law required. The improved social conditions and increase of taxable values were deemed by the state adequate consideration; and in many cases, as was said in Yates v. Houston, 3 Tex. 455, "these grants were, in fact, dearly purchased by the unparalleled sufferings" of the settlers. Keeping in mind that these grants were purchases will furnish the key to the decisions as to the inception of title to such grants. The pre-emption laws were propositions on the part of the state to grant a certain number of acres of land to all who would become settlers on public domain, and reside thereon for three years. The proposition was accepted by settlement on the land. That closed the contract, made the first payment, and the settler acquired at that time an equitable title to the land. It was necessary to follow such settlement by survey and three years' occupancy, in order to obtain a patent, just as it is necessary, where land is purchased on a credit, to make the promised payments. Also under the colonization laws, the state offered to sell the land to the colonist in consideration of his settlement. Hence in Mills v. Brown, 69 Tex. 244, 6 S.W. 612, Creamer v. Briscoe, 101 Tex. 400, 109 S.W. 911, 17 L.R.A. (N. S.) 154, 130 Am. St. Rep. 869, Porter v. Chronister, and Wilkinson v. Wilkinson, the land was held to be community property, because the contract of purchase was closed, the first payment was made, and the equitable title was thereby vested during the marriage state. The subsequent payment of the remainder of the purchase money, by completing the settlement, after the death of the wife, did not give title, but only perfected the title already acquired. This is why the subsequent payment of the purchase money, or performance of condition, is said to relate back to the inception of the title. In other words, title is acquired when the contract of purchase is closed; it is perfected when final payment is made and an absolute conveyance is executed, or a previous conditional conveyance becomes absolute, by compliance with its terms.
No contract for the sale of land is made until a purchaser has accepted the terms of the contract in their entirety, and thereby expressly or impliedly agreed to comply with *Page 1022 all of the terms proposed by the seller. If the terms be cash, the purchaser must tender the full amount in cash. If the terms be upon a credit, in whole or in part, he must agree to make the payments at the stipulated time or times. If the sale be upon a credit, an equitable title is acquired when the contract is closed. The failure of the purchaser to comply with the terms may cause him to lose his equitable title, but it does not change the fact that he had such title.
The fact that the terms upon which it is proposed to vest title must be fully complied with — that is the conditions precedent must be performed, and there must be a promise to perform the conditions subsequent — is illustrated in the acquisition of title by limitation. In such cases the state agrees that whoever may take possession of lands and continue such possession, under the conditions and for the time mentioned in the statute, shall have title to such lands. A man takes such possession and continues the same for a portion of the period during the lifetime of his wife, and completes such occupancy after her death. The title acquired is not community property. Bishop v. Lusk,8 Tex. Civ. App. 32, 27 S.W. 306; Gafford v. Foster, 36 Tex. Civ. App. 57,81 S.W. 63. Here the inital service was performed during the lifetime of the wife. Why was the land not community property? Because it was not "acquired" by taking possession of and living on it a part of the time. The possession was not taken under contract, and, being unlawful, there was no implied promise to continue such occupancy for the period required by statute. Hence, until the full period required by statute is completed the occupant "will have acquired no interest, either legal or equitable, in the land." Bishop v. Lusk, supra.
Again we ask, when did the Rawlses acquire title? When and how did their title begin? The proposition of the state to sell to them was contained in the second section of the act of 1856, which reads as follows: "That all persons who are now settled upon any portion of the said reserve belonging to the state, shall pay fifty cents per acre for his or her claim not to exceed one hundred and sixty acres, and the said parties are hereby required to have their lands surveyed by the district or county surveyor, and the field notes returned to the General Land Office by the first day of January, A.D. 1858, provided that all persons now resident on said reserve shall, on or before the first day of January, A.D. 1858, pay over to the Commissioner of the General Land Office the said amount of fifty cents per acre, for the amount of their claims. And the Commissioner is hereby required to patent the surveys authorized by this section as other surveys." The Rawlses could have acquired title under this act only by complying with all of its terms. What were these terms? That they should have the lands surveyed, the field notes returned to the land office, and pay 50 cents per acre before the 1st day of January, 1858. By amendment, the time for returning the field notes was extended to April 30, 1859, and the time for payment to October 1, 1859. The terms were not that they should do one or more of these things and promise to do the others, but that they should do all of them within the time prescribed. J. T. Rawls sold to James Smith, on January 12, 1858, and W. W. Rawls sold to Geo. Stiles on January 25, 1858. At the times of these sales, the lands had been surveyed, and the field notes of the J. T. Rawls had been returned to the land office, but no money had been paid. Smith sold to Stiles September 7, 1858; still no money had been paid, and none was ever paid until it was paid by Stiles, nearly a year after his marriage. Hence neither the Rawlses nor their assignee complied with the terms proposed until after Stiles' marriage. In other words, the proposition of the state to sell said lands was not accepted by the Rawlses or Smith, and not by their assignee Stiles until after his marriage.
Did the Rawlses or Smith ever acquire any right in these lands? "A right is something which may be asserted in the courts as a basis for cause of action or defense." Gafford v. Foster, supra. Suppose the state had been suable, and the Rawlses had brought suit against the state to recover title on the day they sold. The court would have said to them: "The terms upon which you were to have title to these lands have not been complied with, and hence you have no title, legal or equitable." But they might have said: "We have had the lands surveyed, and we intend to have the field notes returned and make the payment within the time allowed us." The reply would have been: "The state did not offer to sell you these lands upon condition that you would have them surveyed andpromise to return the field notes and pay the purchase money in a given time, but only on condition that you first do these things. Your good intentions cannot take the place of performance of the conditions precedent." While having the lands surveyed indicated a purpose to pay for them, it was not in fact a promise, express or implied, to do so.
What did the Rawlses have at the time of their sales? Only a preference right to purchase. Let it be kept in mind that this preference right to purchase for a fixed time was not a sale upon a credit for such time. This time was given in which the Rawlses could elect whether or not they would purchase at all. We do not think such exclusive privilege to purchase constituted title of any character.
The Constitution of the Republic of Texas (section 10, General Provision) gave citizens then in Texas a preference right to locate the lands to which they were entitled, so as to include their improvements. This right was declared to be assignable. The act of *Page 1023 1837 (Laws 1837, p. 222) gave them six months' preference right in which to exercise this privilege.
In Edgar v. Galveston Co., 21 Tex. 330, the court said: "From these provisions it appears that settlement gave no right, but only a preference." The improvement did not give a right to the land. The occupancy which gave a preference under the Constitution is not a fixed right to land, which arises under a pre-emption settlement which in itself is the moving cause of the grant to the identical land.
In Patton v. Skidmore, 19 Tex. 539, 540, the court said: "The six months' preference given was a virtual reservation of the land from general location, for the benefit of those residing on vacant land, who might wish to secure titles to their homes. Compliance with the terms prescribed was a condition precedent to the acquisition of title. It was at his option to exercise his privilege or not. Nothing short of actual compliance with the terms and conditions of the law could confer on the occupant a right, or raise an equity, as against the government or third persons."
In Simpson v. Oats, 102 Tex. 188, 114 S.W. 106, Mr. Chief Justice Brown, speaking for the court said: "The fourth section of said act provides as follows: `Any person now occupying any part of the public domain of the state in good faith, shall have the right to take the necessary steps, at any time within twelve months from the passage of this act, to appropriate the same, or a part thereof, to a homestead under the first section of this act, or to purchase the same, or a part thereof, under the third section of this act.' That law gave to Ripley the preference right for 12 months from August 12, 1870, to have the land he occupied surveyed and field notes returned into the General Land Office, but in order to acquire it as a homestead, he was required to reside upon the land three years from that time. His previous occupancyof the land counted for nothing, except to secure to him the preferenceright for 12 months to appropriate the land for a home. The only right which existed at the time at Mrs. Ripley's death was the preference, secured by the statute. Ripley had no property right in this land atthat time; therefore the land which was acquired after her death by his action in complying with the statute and his residence upon the land was his separate property." (Italics ours.)
In Simpson v. Oats, supra, the land was held to be the separate property of the husband because no survey was made in the lifetime of the wife. In Mills v. Brown, supra, the fact that a survey was made before marriage was held not to constitute the land separate property. No conflict will be found in these decisions when examined in the light of their respective facts. In Mills v. Brown, the settlement was the thing required to close the contract with the state. In Simpson v. Oats, no settlement was required, because it had already been made. The act under which the land was patented was not passed until two years after such settlement. The only thing required of Ripley under said act was to have the land surveyed and the field notes returned to the land office within 12 months from the passage of said act, and to occupy it for three years thereafter. All of these things he did after the death of his wife. At the time of his wife's death he had a preference right to acquire the land in the manner he afterwards did acquire it; but, as said by the court, this preference right gave him "no property right in this land at that time." A right in the land as it is called in Creamer v. Briscoe,101 Tex. 493, 109 S.W. 911, 17 L.R.A. (N. S.) 154, should be distinguished from the privilege of acquiring such right.
The survey of these lands for the Rawlses bears no analogy to a survey made by virtue of a land certificate. A land certificate was the written promise of the state, for a valuable consideration, to grant to the holder thereof the number of acres of land mentioned therein when selected by him; such selection to be made by an official survey. It was the purchase money paid to the state for the land granted. A land certificate was a floating equity to land, which became fixed when the survey was made. "The holder of it had no claim to any particular portion of the public lands, but a general lien upon all the lands, to be satisfied out of such portions as were unappropriated at the time he made his selection or location." State v. Delesdenier, 7 Tex. 98. The certificate was the purchase money; the survey was the purchase. A survey made by virtue of a land certificate was declared by statute to constitute title to land. Paschal's Dig. art. 5303. The Rawlses' preference right to purchase was assignable, but they could assign no more than they had, which was only a privilege to purchase. This privilege may have been valuable, but it was not title to land. Palmer v. Chandler, 47 Tex. 335.
Appellees rely upon the case of Manchaca v. Field, 62 Tex. 135, and Welder v. Lambert, 91 Tex. 510, 44 S.W. 281. In the former case the special judge who rendered the opinion said: "There is much force in the argument" that a license to purchase is not equitable title to the thing subsequently purchased, "and it finds an apparent sanction in Webb v. Webb, 15 Tex. 274, Walters v. Jewett, 28 Tex. 192, and in perhaps other decisions of this court; but the later decisions and the weight of authority seem to favor the proposition of appellants, that the concession, having a money value, and being the subject of sale, was property in which Mrs. Sanches had a community interest which descended to her heirs at her death, and which attached to the grant subsequently *Page 1024 extended." The only cases or authority cited in support of this opinion are Porter v. Chronister, 58 Tex. 54, Wilkinson v. Wilkinson, 20 Tex. 244, and Yates v. Houston, 3 Tex. 452. Neither of these cases support the proposition announced in the above excerpt. Chronister was a colonist in Peters Colony. The state guaranteed to each family who settled in said colony 640 acres of land, even though the promoters failed to carry out their contract. Act Feb. 4,1841 (Laws 1840-41, p. 173) § 12. The act of January 21, 1850 (Laws 1849-50, c. 51), authorized patents to be issued to each head of a family as compensation of such settlement (section 1 of said act). Chronister "applied for and secured a certificate for 640 acres of land, by reason of the immigration and settlement of himself and family." In Wilkinson v. Wilkinson all of the conditions necessary to entitle the head of the family to an unconditional certificate were performed in the lifetime of the wife. In Yates v. Houston the issue was as to whether the reputed wife was to be considered, for the purposes of that case, the legal wife. The immigration, location, and issuance of patent all occurred during the lifetime of both husband and wife.
The rights of the parties in Manchaca v. Field, supra, and in Welder v. Lambert, 91 Tex. 510, 44 S.W. 281, were determined under the Spanish law. But not so in the instant case. It is true that our statute as to community property drew its inspiration from the civil law, but it is our statute, and not the civil law, which governs here. Routh v. Routh,57 Tex. 596.
The interpretation of the civil law in Welder v. Lambert is based upon the case of Barbet v. Langlois, 5 La. Ann. 215. It appears that the right to purchase the land in rear of the river grant was not treated as a gratuitous offer by the government, but as part of the contract under which the front tract was acquired. That portion of said decision in the French language, when translated, reads as follows: "The property acquired by husband or wife is community property only when the title or cause of its acquisition was not antecedent to the period of their community (partnership); otherwise it is the individual property of the members of the community (partnership). For it is not the supplemental payment which I made of the just price which constitutes my title of acquisition; it is the sale which was made to me before my marriage. According to the Code, property is transferred by the contract of sale (1583); but the promise to sell is as binding as the sale, according to article 1589; that is to say the promise to sell compels him who made it to enter into the contract of sale. However, the promise to sell does not transfer property, as the contract does. Thus he to whom the promise was made is not the owner before the contract is drawn; out, as his right to compel the promisor to enter into the contract with him is antecedent to the marriage, the inherited property will not become community property, except for compensation. For the same reason, if the relative from whom I inherit had sold some property with the privilege of buying back, and if after his death, acting as his heir, I have used this privilege of buying back, I am supposed to have this property (inheritance) as a succession from my relative; although I did not find the property (inheritance) itself in the succession, it is sufficient that I found in it (the succession) the right of buying back, which was exercised in this property (inheritance) which I bought back; this inheritance is consequently my own property, both in the matter of succession and individual property of (the member of) the community, except the compensation which I owe to the community, for the sum which I drew from it to avail myself of the right of buying back. Pothier Community, 116."
The phrase "cause of its acquisition," when taken in connection with the other parts of the quotation, means the contract of acquisition. The instances mentioned in the translations made by the court in Welder v. Lambert are title under a will, a deed where the purchase was on a credit, and the redemption of an equity. A will and a deed are muniments of title. They convey title, though such title may be defeated by conditions subsequent. "An equity of redemption is an interest in the land mortgaged which will descend to the heir of the mortgagor, who in legal contemplation continued to be the owner of the land." "An equity of redemption is considered to be the real and beneficial estate, tantamount to the fee at law." Words and Phrases, vol. 3, p. 2447.
In support of our statement that the Supreme Court of Louisiana treated the right to purchase the lands in the rear as an implied part of the contract under which the river front was acquired, we quote from the opinion in Barbet v. Langlois, as follows: "By the act of 1811, every person in Louisiana who owned a tract of land bordering on a river, creek, bayou, or water course was entitled to a preference right in becoming the purchaser of the vacant land adjacent to and back of his own tract to a depth of 40 arpens. This legislation was founded upon a just respect for the usage, which existed under the French and Spanish governments, of granting, on application of the proprietors of land fronting on a river or bayou, what was called a `double concession.' It was not so much a pure liberality on the part of the United States, as a just fulfillment of the reasonable expectation which the grantee under the ancient government had been encouraged to entertain when he went forth to subdue the wilderness." Not so, however, in the instant case. The Rawlses had not been encouraged to go upon *Page 1025 this land, but had been expressly forbidden by law so to do. The act of 1856 was not in just fulfillment of a reasonable expectation which they had been encouraged to entertain, but a pure act of grace on the part of the state to relieve them, and others like them, of the consequences of their own folly in improving land which they knew was reserved from settlement. The court in Barbet v. Langlois treated the right to purchase the rear tract as a sort of appurtenant to the front tract, arising from the custom of the French and Spanish governments of granting double concessions. But as no promise, express or implied, was held out to the Rawlses that in consideration of their settling on this land they should have a preference right to purchase it, we do not think that such privilege to purchase should be held to be title to land, nor, until accepted, the beginning of title.
It seems to have been held in Welder v. Lambert that the mere privilege of purchasing land, acquired before marriage, would constitute land purchased under said privilege after marriage separate property. If such be the case, a concession to fish in certain waters, granted before marriage, would make fish taken in such waters after marriage separate property. Such would not be the case under our law.
Whatever may have been the Spanish law with reference to a mere privilege to purchase, the correct conclusion seems to have been reached in Welder v. Lambert upon the facts of that case. Power and Hewitson had a colonization contract by virtue of which, upon the performance of the contract, they were entitled to certain lands. This written contract conveyed equitable title. It was made and partly performed before Power's marriage. The patent issued after the completion of the contract and subsequent to his marriage was held to relate back to the date when the equitable title was acquired. This is not essentially different from the case where a party buys a tract of land before marriage and pays part of the purchase money, taking a bond for title, or deed, with vendor's lien retained, and finished payment and takes deed or release of the lien after marriage. In such case the land is separate property, for the reason that title was acquired before marriage, though perfected after marriage. Powers had "la accion" under the Spanish law, and an equitable title under the common law, at the time of the execution of the contract; and, "when the condition was accomplished, it referred back to the time of the making of the contract, and is considered as made at that time." In the instant case, there was no contract until Stiles, as assignee of the Rawlses, accepted the state's proposition to sell the land, which, as above stated, occurred after his marriage.
Believing that this case has been correctly decided by this court, appellees' motion for a rehearing is overruled.