Being unable to concur with my Associates in the holding that the land in controversy was the *Page 1016 community property of George Stiles, the reasons for such nonconcurrence will be stated:
It has always been the policy of this state to encourage actual occupancy and settlement within its borders. At the time in question it owned many millions of acres of public domain. In addition to prior laws granting headright and bounty warrants to persons becoming citizens of the state, or rendering certain public services, a law had been enacted donating 160 acres of public domain to actual settlers. In 1853 a law was enacted which sought to induce the construction of a railroad across the state from its eastern to its western border. It offered 20 sections of land per mile for the construction of such road, and created a reservation of all the vacant and unappropriated lands belonging to the state east of the 103 parallel of longitude west from Greenwich, and embraced between the parallels of latitude 31 and 33 north, and all of such lands west of 103 deg. of longitude and embraced between the parallels of latitude 30 deg. 30' and 32 degs. north latitude, for the purposes set forth in the act, such reservation to continue until the road was located, and thereafter was restricted to 30 miles on each side of the road. This reservation included a vast body of the best unappropriated public domain within the borders of the state. After waiting about three years and finding that no person or company had undertaken to construct the road, the Legislature passed the law of August 26, 1856 (Laws 1856, c. 128), abrogating the reservation, and declaring the public land embraced therein subject to location and sale in the manner prescribed by that statute. The second section of that act 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 upon the said reserve shall, on or before the 1st 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."
This act was afterwards amended, as pointed out in the majority opinion, by extending the time for returning field notes and making payments. The act of November 28, 1857, which extended the time of payment to the 1st day of October, 1859, as does the original act, designated the land as the "claim of the settler"; and it declared that "Should any person fail to pay for his or her land by that time, the land so claimed by him shall be subject to relocation as other public domain belonging to the state." The amendatory act of February 10, 1858 (Laws 1857-58, c. 118), extended relief to both pre-emption settlers and settlers in the reservation, and showed upon its face that the Legislature considered that each class of settlers had acquired similar rights, and were entitled to the same consideration and benefits, on account of the fact of their prior settlement upon the land. The first section of that act grants relief to pre-emption settlers and their assignees by extending the time for making surveys and returning the field notes to the land office. The second section reads as follows: "Sec. 2. That all those actual settlers or their assigns, who are required by an act, passed August 26th, 1856, for location, settlement and survey of the Pacific Railroad Reservation, and an act supplemental thereto, passed for the relief of said actual settlers by the 7th Legislature, to pay fifty cents per acre, shall have until the first day of January, 1859, to have their surveys made and field notes returned to the General Land Office."
Considering all of these laws together, Including the one which created the reservation, and considering other facts that are historical in their nature, the matter may be summarized somewhat as follows: It was the settled policy of the state to secure, not only population, but that class of citizens who would establish homes and develop the resources of the state; and, in order to accomplish that purpose, it had long been the policy to offer special inducements to actual settlers. The railroad reservation referred to, while it did not divest the state of title, nor permanently appropriate the land for another purpose, had the effect of militating against the cherished policy of settlement and development as to a large area of the best territory in the state. Knowing the state's settled policy to encourage the actual settler, and doubtless anticipating that the scheme for the construction of the railroad would be abandoned and the reservation abrogated, no doubt many families settled upon the land under the belief that when the ban of the reservation was removed the state, acting through its law-making department, would recognize the fact that it rested under a moral obligation to protect such actual settlers. That the Legislature did this, and, on account of such settlements, secured to such settlers privileges and benefits concerning such lands that were not accorded to others is clear to my mind. It is true that the act removing the reservation contained provisions authorizing the location of certificates and land scrip within the reservation, and provided for scrip to be issued at 50 cents per acre, But no preference right was given to locate on any particular lands, nor was time allowed to pay for scrip. So, while it is true that the settler was required to pay to the state as much as the scrip *Page 1017 locator, he was not required to pay at once, and the time of payment was finally extended to 1861; and the exclusive right to a particular tract of land was by the law itself vested in him, and no such right was vested in the locator. And it seems to me that if the fact of settlement is to be treated as only a consideration for these privileges and benefits, nevertheless, as these were important factors in obtaining the title, the consideration which secured them ought to be deemed the inception of the title.
It is stated in the majority opinion that the state was under no obligation to grant the right it did to actual settlers, and that the right so granted was a mere gratuity. For the reasons stated, I do not concur in that view; on the contrary, it is believed that a high moral obligation rested upon the state to in some manner compensate those who had made actual settlement, and I have no doubt that the second section of the act of August 26, 1856, securing to such settlers the exclusive right to purchase on time the land upon which they had settled, was enacted for the purpose of discharging that obligation. With the exception that at the time such settlements were made they were not authorized by law, they were as much in furtherance of the state's cherished public policy as were pre-emption and other settlements which were made outside of the reservation; and for that reason it was the moral duty of the state, when the reservation was removed, to secure to such settlers the prior right to the lands upon which they had settled. Therefore, looking to the several acts referred to, we find that the Legislature not only recognized the fact that these settlers were asserting a claim to the land, which it was the moral duty of the state to protect, but we find that section 2 was enacted for the accomplishment of that purpose; and, in addition to that, one of the acts constitutes a legislative construction of the former acts to the effect that on account of settlement alone, and of the act of August 26, 1856, such settlers had acquired a vendible title, because the supplemental act referred to expressly grants to the assigns of such settlers, as well as the settlers themselves, further time within which to have their lands surveyed, and the field notes returned to the General Land Office. And another act prescribed that upon failure to pay by the time stated the land should be subject to relocation, thereby treating the fact of settlement and survey as equivalent to a location under certificate or scrip.
In determining whether or not settlement upon public domain is to be regarded as part of rile consideration moving the state to grant the land to the settler, it seems to me to be immaterial whether or not the settlement was made in pursuance of a law authorizing it, or was subsequently ratified and treated by the state as part of such consideration. In both cases the fact of settlement subserves the same public interest and promotes the same public policy.
The authorities cited in the majority opinion show that, in determining the question whether property belongs to the separate or community estate, recourse must be had to the origin or inception of the title, and that if the consideration which secured the inception of the title was furnished by the separate estate, the property will belong to that estate, although the remainder, and even the greater portion of the consideration, may subsequently be furnished by the community estate; and the reverse is true if the first part of the consideration is furnished by the community estate. In this case the majority of the court hold that the inception of Stiles' title was the payment to the state of 50 cents an acre for the land, and that as such payment was made by Stiles out of community funds, the land became community property. The writer differs from that conclusion, and is of the opinion that the inception of the Stiles title was his purchase of the Rawls titles, and as that occurred before his marriage the land became his separate property.
It is held in the majority opinion that the statute removing the reservation and authorizing sales to actual settlers conferred upon the latter nothing more than an option or preference right to purchase the land. It is also stated in that opinion that no obligation rested upon the settlers to do anything. It was not necessary for the settlers to obligate themselves to pay for the land and perfect their title before they could acquire an inchoate right thereto. It is believed to be a sound proposition of law, well settled in this state by judicial determination, that whenever such steps have been taken as will secure to a particular person the exclusive right as against all other persons, except the state, to a particular tract of public land, then the person to whom such right has been secured has at least an equitable title to such land, which title may subsequently be perfected by performance of such additional acts as may be necessary to obtain the legal title from the state. In the application of this principle of law it has been held that when a person, claiming as a pre-emptor, has become an actual settler upon the land, and had it surveyed, it is thereby segregated from the body of the public domain, and such pre-emptor, although he may not have resided upon the land for half the time required to perfect his title, has acquired an inchoate right or equitable title thereto; and this is true although such pre-emptor may thereafter lawfully abandon his claim and never perfect his title. And the same is true as to a claim founded upon a certificate location. When the certificate has been delivered to the proper surveyor, and the survey has been made in the manner prescribed by law, the result is that the land so *Page 1018 surveyed is segregated from the public domain, and the owner of the certificate has an equitable title thereto, although he may thereafter abandon his location and claim, and never perfect his title; but in neither of the instances stated is it necessary that the claimant of the land must have obligated himself to perfect his title or to do anything else in order to acquire such inchoate right or equitable title.
So in this case, applying the rule of law referred to, it seems to me that it should be held that it was the intention of the Legislature, in enacting the second section of the law removing the ban of the reservation, to reward those who had improved such lands and established their homes thereon by securing to them and their vendees the exclusive right to purchase the land from the state, and that such legislation was intended to ratify and vitalize the fact of settlement by treating it as part of the consideration for the land. And if this be true, then the origin of the Rawls title goes back, on account of the law referred to, to the time and fact of settlement, or at any rate to the date of that statute. It may be true that the right thus secured was not definitely fastened upon the two Rawls tracts until after they had been surveyed; but when that was done, in my opinion, those tracts of land were then segregated from the body of the public domain, and J. T. and W. W. Rawls had an equitable title in them. J. T. Rawls conveyed his tract to J. S. Smith on January 12, 1858, and on September 7, 1858, Smith conveyed it to Geo. Stiles to whom it was patented as assignee of J. T. Rawls. In the deed from Rawls to Smith it is stated that the land constituted J. T. Rawls' claim and location under the act of 1855 or 1856, granting land to actual settlers at 50 cents an acre, and it is also, in substance, stated that the land had been surveyed, the field notes returned to the land office, and the claim proven up. On January 25, 1858, W. W. Rawls conveyed his 160-acre tract to George Stiles, and the deed recites that the land had been surveyed; and it is further stated that Stiles is to pay the $80 that will thereafter fall due at the land office for the land. And it is also stated in the deed from Smith to Stiles that the Commissioner of the Land Office is to issue a patent to Stiles, upon payment by him of the amount due the state. It is further stated in said instruments that each survey was made by virtue of proof made under the act of the Legislature entitled, "An act to authorize the location and settlement of Mississippi and Pacific Railroad Reserve, passed August 26, 1856." These recitals being in George Stiles' chain of title, and both parties claiming under that title, and nothing being shown to the contrary, it must be held that the Rawlses were actual settlers upon their respective surveys, when the act of August 26, 1856, went into effect, and that their titles were founded upon their respective rights to such lands, because of such actual settlement It was also shown, by proof submitted by appellants, that George Stiles, subsequent to his marriage, paid to the state $81 due on each of the Rawls surveys, and the fact of such payments is satisfactory proof that both of those grants were based, in part, upon the fact that the Rawlses were actual settlers when the law opening the reservation went into effect, because that law, nor any other to which we have been referred, did not authorize any one, except actual settlers or their assigns, to purchase lands formerly within the reservation from the state. The law referred to authorized the acquisition of other public lands within that territory by the location of certificates or land scrip, but not by direct purchase from the state. This being true, and for the reasons above stated, in my opinion the Rawlses had a vendible interest in the lands which interest they sold to George Stiles; and, as he was at that time a single man, I feel compelled to hold that these lands became his separate property, although the payments subsequently made to the state consisted of community funds.
There is this feature of this case, which is entitled to consideration, and that is the fact that Stiles was compelled to purchase the Rawlses' claim, whatever may have been its character, in order to acquire a perfect title to the lands. As before said, the law had vested in the Rawlses as actual settlers an exclusive right to acquire full and complete title to these lands; and such right constituted an insuperable barrier in the path of Stiles, or any one else who attempted to acquire title to them. Now, according to the recitals in the deeds, Smith paid J. T. Rawls $85 for his title, and Stiles paid Smith $330 for the same title, and he paid W. W. Rawls for his title to the other tract $200. These payments were made before Stiles married, and therefore were made out of his separate funds. Thus it appears that, in order to acquire title to these lands, Stiles paid out of his separate funds $530, while the amount which was subsequently paid to the state out of the community funds was only $162. However, it is true that the lands were patented to Stiles as the assignee of the Rawlses, and that he has the same title they would have had if the land had been patented to them. But the facts recited afford at least a striking illustration of the proposition that the Rawlses had such a claim to the land as constituted an absolute barrier in the way of Stiles, or any one else who might desire to obtain it. So, while the $530 paid by Stiles for the Rawlses' claims to the land was not in fact a part of the purchase money paid to the state; it was a payment made for the purpose of acquiring prior claims to the land, which claims, in my opinion, constituted equitable titles, and therefore such payment should be considered part of the purchase money for the land. *Page 1019
The authorities bearing upon this question are reviewed in an able argument contained in the brief filed by counsel for appellees, which review and argument are adopted as part of my opinion, and are as follows:
"The contention of appellants that the deeds from W. W. Rawls and J. T. Rawls to George Stiles conveyed nothing, and were not the inception and origin of his title is met by the patents themselves, in which the grant in one is to him as the assignee of W. W. Rawls, and in the other as the assignee of J. T. Rawls. How can appellants be permitted to claim by and through these patents and yet deny their recitations? The equitable title of both W. W. Rawls and J. T. Rawls is recognized in the patents and for that title George Stiles paid a valuable consideration; one tract being purchased about 10 months before his marriage, the other about 2 1/2 months. If this is the incipiency of Geo. Stiles' title, there can be no doubt that it belonged to his separate estate, as found by the court, and not to the community estate of himself and Zilpah Mullins, as contended by appellants.
"In the array of authorities presented by appellants no case can be found which, read in the light of the particular facts, will support their contention nor militate against the doctrine announced in Welder v. Lambert and Creamer v. Briscoe; i. e., `When the origin of the title is in one of the spouses before marriage, it will be presumed that he or she paid it out with his or her individual estate.'
"Woods v. Durrett, 28 Tex. 430, holds that: `A settlement and survey made upon vacant lands within the reserve (Mississippi Pacific) at a time when the land was still reserved, could furnish to the party claiming under it no cause of action entitling him to judgment.' But in both deeds by the Rawlses it is recited that their claim and location is under the act of 1856, which, as the court judicially knows, opened this reservation to settlement. Previous to the act of 1856 the privilege extended by the seventh section of the act of 1854 to settlers on public domain was expressly limited to settlers upon land not then reserved from entry or location, and hence did not apply to lands in the Mississippi Pacific Reserve.
"In Mills v. Brown, 69 Tex. 244 [6 S.W. 612], the land involved was a pre-emption, and the widow before marriage applied for a pre-emption of the land, paid the surveyor's fees, then married one Yarbrough, and afterwards moved on the land. It was held that the title did not originate in the widow, but that it was community property. Because the court says: `Settlement upon the land is the first step towards obtaining the title, and without it no application for survey can be granted.' As no settlement was made on the land until after the marriage, her application and payment of surveyor's fees were mere nullities. But had she before marriage settled on the land, made her application, and paid the surveyor's fees, we apprehend there would have been a different result.
"In Webb v. Webb, 15 Tex. 274, the husband and wife moved to Texas in 1833, the wife died in 1834, and title was extended to the husband for the land in 1835. It appeared that the husband had selected the land prior to the wife's death. It was held that the land was part of the separate estate of the husband. The court in so holding says: `The record of the statement of facts shows that the land had been selected before the death of the wife, but it does not show in what way it had been selected, whether by application to the commissioner or in any other way. It does not show that the requisite qualification of the applicant had been decided upon by the commissioners, or that anything had been done that was essential to the validity of the grant prior to the death of the wife.' But in the pending case essential steps had been taken by the two Rawlses; they had settled on the land and had it surveyed, and these essential steps are recited in the deeds which they subsequently made, and through which appellants trace title and are not permitted to deny. Likewise the patents recognize the Rawlses as assignors whose interests the state recognizes without question, and which interests were the foundation of the Stiles title. In Wilkinson v. Wilkinson, 20 Tex. 237, the court says: `This case is clearly distinguishable from Webb v. Webb,15 Tex. 275. In that case nothing had been done before the death of the wife upon the grant issued after her death to her husband. It was not shown that any legal steps had been taken before her death to secure the land or a title.'
"Appellants contend that the Rawlses had no vendible interest in the lands which they sold, and, as tending to sustain their insistence, cite Palmer v. Chandler, 47 Tex. 332. In that case the pre-emptor, before the expiration of three years which the law required him to reside upon the premises in order to acquire title, sold his claim to another, attempting to secure part of the selling price, as evidenced by a note, by a vendor's lien on the land. On consideration the court held there was no lien, and that when the pre-emptor abandoned and ceased to occupy the land he gave up and lost the inchoate right he had previously had to acquire it by continuing to occupy and improve it for the requisite time to entitle him to a patent. But in that case the pre-emptor had done nothing that availed his vendee in acquiring title. He had to occupy the land for three years, and the occupancy of his vendor counted for nothing. In fact the vendee acquired the land in his own right, unaided by any act of his vendor. The reverse is true in this case, where the settlement of the *Page 1020 Rawlses, the survey of the two tracts of land, and the filing of the field notes, are matters essentially necessary to the acquisition of title, and, having been done by the Rawlses, are not required of Stiles, who acquired these rights from them.
"Williams v. Finley, 99 Tex. 468, 90 S.W. 1087, is also cited by appellants, where it was held that when the vendor had valuable improvements on the land sold, so that he was entitled to compensation therefor, but the paramount title was in the state, so that the purchaser was obliged to purchase, not only the title from the state, but to reside on the land for three years in order to acquire title under statutes relating to the disposal of state land, the vendor was entitled to recover of the purchaser only the sum by which the improvements placed on the land by him increased the value of the land. The following excerpt from the opinion will show that the principle there invoked has no reference to cases of this character: `Many decisions of this court have dealt with cases in which persons have contracted to purchase or become tenants of lands supposed to belong to those selling or renting, but which in fact were part of the public domain, subject to appropriation by themselves as homesteads or pre-emptions, and have, on discovering the truth, asserted the right affirmatively given to them by the statutes to acquire the title.' In such cases the contracts of sale are held to be without consideration, as the vendor had no vendible interest in the title; his interest being restricted to the improvements. But there was no mistake in this instance, and the Rawlses, by their acts in compliance with the statutes, had secured legal and valuable rights, which they conveyed to Geo. Stiles, who, by virtue of his rights thus acquired, afterwards procured patents to the land.
"In Lamb v. James, 87 Tex. 486 [29 S.W. 647], the vendor James was not lawfully in possession of the land which he attempted to convey to Lamb, and from this conveyance, the latter received no benefit. Such being the facts, the Supreme Court in passing on the case say: `The possession of the vendee cannot ripen into a right, nor will it give him any advantage in dealing with the state. His wrongful possession will not preclude an actual settler from moving onto the land under contract with the government, for it can confer on him no right of action or defense.' But the possession which Stiles received as the vendee of the Rawlses did inure to his benefit, and but for it he could not have acquired the legal title.
In Rayner Cattle Co. v. Bedford, 91 Tex. 642 [44 S.W. 410, 45 S.W. 554], the rule announced in Lamb v. James, is reiterated. In Simpson v. Oats [102 Tex. 186], 114 S.W. 105, where the husband and wife resided on the land at the time of her death under the mistaken belief that they had acquired title from another, when in fact the land was part of the public domain, the wife dying before the husband had taken any steps to comply with the law for acquiring the land, it was held that it was the separate estate of the husband, and not community property. The court says in the opinion: `This case is distinguishable from Creamer v. Briscoe in the fact that in that case all the steps necessary to secure the land had been taken before the wife died except the occupancy of three years, which had been commenced, and only required to be completed to give title. The very things — survey and return of the field notes — which determined in that case that the property was community, are absent in this, and their absence determines that the land was not community property of J. W. and Hannah Ripley.' The very things — sarvey and return of the field notes — which were decisive in Creamer v. Briscoe appear in this case, and no stronger citation against the contention of appellants can be found.
"Gafford v. Foster [36 Tex. Civ. App. 56], 81 S.W. 63, is a case in which the husband and wife were living on land to which they had no title. The wife died before limitation had run in their favor. The husband continued to live on the land after the wife's death until the bar was complete and it was held that the wife acquired no interest, the court remarking: `There are any number of authorities to the effect that, when a right to property is acquired during marriage, such property will belong to the community, even though the wife dies prior to the completion of the title. This is so in bonds for title to property or other contracts of purchase, bounty warrants, land certificates, and the like; but in all these cases a legal right exists in favor of the community which may be asserted against the world. This is not true in the case of one who attempted to acquire by limitation. He has only the chance of obtaining title by being permitted, unmolested, to hold the land for the prescribed time.' We presume it will not be denied that the title acquired by Geo. Stiles from the Rawlses was one that he could have asserted against the world. Even the state could not defeat this title, if he proffered the 50 cents per acre within the time allowed; his vendors having already taken the initial legal steps.
"Clark v. Altizer, 145 S.W. 1041, decided by this court, does not lend support to appellant's theory, holding as it does that a purchaser of school land from the state, who sells within less than one year from the date of his purchase and settlement, forfeits the land and his payments to the state. But this holding is based on the act of the Thirtieth Legislature (1st Ex. Sess. c. 20, par. 6), and but for the legislative enactment the court holds, as we understand, the original purchaser had a vendible title, though he had not completed his three years' residence on the land. Aside from the statute, we understand the court to hold: `Where school lands *Page 1021 were legally awarded by the state, a substitute purchaser acquired a vendible title, which was a sufficient consideration to support notes given for the purchase money therefor, and a mortgage given to secure the same, though the three years' occupancy prerequisite to the issuance of final title by the state had not been completed.' Certainly, no case can be found more strongly sustaining the theory of appellees."