Isaac D. Hamilton was a member of Captain Jack Shackelford's company, called the Red Rovers, in the service of the Republic of Texas, and at Goliad Hamilton was seriously wounded, which disabled him for labor. On the 18th day of December, 1837, the Congress of the Republic of Texas enacted this statute: "An Act making provisions for persons who have been permanently disabled in the service of Texas.
"Section 1. Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, that Thomas William Ward, James C. Neill, James Belden, John Thomas, Washington Somers, and all others who have been permanently disabled by loss of eye, arm or limb, or other bodily injury, as by certificate of the Board of Land Commissioners, shows his incapacity for bodily labor, by wounds received in the service of Texas, be and they are hereby declared to be entitled to one league of land each, as a testimony of the gratitude of this Republic.
"Sec. 2. And be it further enacted, that the lands hereby granted shall be included within that class of claimants to whom six months' preference has been given."
On the 13th day of February, 1858, the Legislature of the State of Texas enacted the following statute: "An Act for the relief of Isaac D. Hamilton.
"Section 1. Be it enacted by the Legislature of the State of Texas, that the Commissioner of the General Land Office be and he is hereby required to issue to Isaac D. Hamilton a certificate for one league of land, on account of wounds received in the service of the late Republic of Texas in 1836, which have disabled him, and said certificate may be located upon any of the vacant public domain unappropriated, in the same manner as other certificates, and that a patent issue therefor without any other fee than the customary one for patents." Under this statute a certificate was issued to Hamilton for a league of land and was located and patent was issued thereon on the ____ day of ______, 1869, which is the land in controversy in this suit.
Nona Mills Company instituted this suit in Hardin County on the 22d day of April, 1903, against a number of parties, some of whom disclaimed any interest in the land and therefore need not be mentioned further. Mid Glaze, G.W. Hooker and L.P. Wright all answered by different pleas but it is unnecessary to state the nature *Page 19 of their pleadings. John H. Hamilton and a number of other persons intervened in this suit claiming the land as heirs of Isaac D. Hamilton. There is no dispute about the heirship of the interveners, and we will not state any facts in connection therewith. The Nona Mills Company claims the land under the following title:
Isaac D. Hamilton lived in Harris County and was the owner at one time of a slave named Maria, and in the year 1854, Hamilton and John N. Dupree jointly executed this instrument: "The State of Texas, Galveston County. This indenture made and entered into this 12th day of January, 1854, between Isaac D. Hamilton, of the city of Houston, Harris County, and John M. Dupree, of the county aforesaid, Witnesseth, that whereas the said Hamilton is now seriously sick, and indisposed in Galveston county and is indebted in a large sum of money to Maria a free negro woman who was formerly a slave belonging to said Hamilton and to whom he is justly indebted for services since her freedom, and for cash borrowed of her in the sum of five thousand dollars, and being desirous of securing the payment of said debt to said Maria, and for that purpose being desirous and willing to convey the property herein named directly to her in discharge of said debt but for the doubt as to her capacity in law to hold the same and for the sole purpose of placing all the property hereinafter named in such a position that the said Maria may have the entire amount of said property for her own use and benefit and the proceeds thereof. Therefore, this indenture witnesseth that for and in consideration of the premises, and also for the further consideration of one dollar to the said Hamilton in hand paid by the said Dupree at and before the sealing and delivery of these presents, the said Isaac D. Hamilton hath granted, bargained and sold, and by these presents doth grant, bargain, sell and convey unto the said John N. Dupree, his heirs and assigns the following named real estate and personal estate, to wit: All that piece or parcel of land lying in the city and county of Galveston, State of Texas, known and designated on the map of said city as lot number eleven in block number five hundred and four, with all the buildings and improvements thereon standing and all the household and kitchen furniture now in use in said building; also one-third of a league of land the same being the headright of said Hamilton and situate and located in said State in one of the counties of said State not now recollected, and reference for a full description of said land is here made to the patent issued for the same; also one league and labor of land donated to said Hamilton by the State of Texas for losses suffered during the Mexican invasion, also two gold patent lever watches. To have and to hold the above granted and bargained premises, real and personal estate, unto the said Dupree, his heirs and assigns forever. Upon trust only and for the sole purpose of holding the same for the benefit of said Maria and to sell the same at any time upon the request of the said Maria and after paying the necessary expenses of the sale of said real estate the remaining money to be paid over to the said Maria for her own sole use and benefit to be disposed of by her in such manner as she may deem proper and the said personal estate is to be delivered over to the said Maria upon her request to be *Page 20 used or disposed of by her. In testimony of all of which we have hereunto set our hand and seals at Galveston this 12th day of January, 1854." The trust deed was signed by Dupree. The Mills Company acquired by regular conveyance all of the right which the foregoing instrument vested in Maria Hamilton. There is no dispute about the proposition that the Mills Company has the title, provided the instrument above copied vested in Maria Hamilton the title. Isaac D. Hamilton died in 1859, and John N. Dupree died in the year ____, leaving a will in which he gave all of his property to his wife, Cyrene Dupree, who, on January 25, 1861, "as surviving wife, heir and executrix of John N. Dupree," conveyed to John Chapman, at the request of Maria Hamilton, all of the property mentioned in the deed from Isaac D. Hamilton to John N. Dupree, to hold on the same terms as expressed in the said deed; and, in 1876, Chapman conveyed the property by quitclaim to Maria Hamilton, who conveyed the land in controversy to Isaac S. Hurt January 4, 1879, and I.S. Hurt conveyed to Nona Mills Company. After Hamilton's death his estate was administered upon and the land in suit and Maria Hamilton's were placed upon the inventory. Maria Hamilton filed a petition in the Probate Court contesting the right of the administrator to hold the property but no action appears to have been had in said court as to said property.
The Nona Mills Company also claims title to the land by three, five and ten years statute of limitation, claiming that it had and held possession of the land by certain tenants who succeeded each other from time to time. The facts with regard to the limitation will be stated so far as necessary in connection with the discussion of that question.
The question presented by this writ of error is, did the deed from Isaac D. Hamilton to John N. Dupree, as trustee, vest the title to the land in controversy in Maria Hamilton. This question embraces the following questions: (1) Did that deed sufficiently describe the land in controversy, and (2) was Maria Hamilton disqualified to take under the deed as a beneficiary. The land sued for was located, surveyed and patented by virtue of a certificate issued by the Commissioner of the General Land Office to Isaac D. Hamilton for one league of land by authority of the Act of February 13, 1858, above quoted. If Isaac D. Hamilton's right was derived primarily from that Act, then the deed to Dupree did not embrace it because it purported to convey a right in existence at the time of its execution. If the Act of 1858 stood alone the grant of the land to Isaac Hamilton could be derived from it by implication only, based upon the authority given to the Land Commissioner to issue the certificate, because there are no words in the law appropriate to express the grant of a right. The language "be and he is hereby required to issue to Isaac D. Hamilton a certificate," etc., is apt for directing the Commissioner to perform a duty in discharge of an existing obligation of the State, and when we look to the further language, "for one league of land on account of wounds received in the service of the late Republic of Texas in 1836, which have disabled him," we see that the consideration of the grant is the same *Page 21 as that expressed in the law of 1837. Looking to the Act of 1837, we find that the grant of one league of land was made to four persons, by name, "and all other who have been permanently disabled by loss of eye, arm or limb, or other bodily injury, as by certificate of the Board of Land Commissioners, shows his incapacity for bodily labor, by wounds received in the service of Texas, be and they are hereby declared to be entitled to one league of land each." The Act of 1858 specifies Isaac D. Hamilton as being one of those who had been wounded in the service of the Republic in 1836 and whose wounds disabled him. The law creating the Land Board having been repealed, Hamilton could not secure his certificate from the Commissioner of the General Land Office, because he could not get the certificate from the Board of Land Commissioners; therefore, the Legislature ascertained the facts which the Board of Land Commissioners were required to find and certify, and then directed the Commissioner of the General Land Office to issue the certificate for the same quantity of land, for the same service and based upon the same fact of disability as were specified in the Act of 1837. We think it satisfactorily appears from a comparison of the two acts taken in connection with the application to the Legislature by Hamilton for relief in 1858, that the right of Hamilton was recognized as existing under the law of 1837 and the Act of 1858 was simply a relief law whereby Hamilton secured the certificate to which he was entitled under the former law. This being the case we see no reason to doubt the proper construction of the deed to be that Hamilton intended to convey to Maria Hamilton the league of land to which he was entitled under the Act of 1837. There are some discrepancies in the description but they are immaterial and will be discarded so as to give effect to the intention of Hamilton in making this deed.
It is objected that Maria Hamilton was a slave at the time the deed was made by Isaac D. Hamilton to John N. Dupree and therefore the trust created in her favor was void. The proposition that a slave could not be the beneficiary of a trust is well settled in this State; we therefore do not refer to nor discuss any of the authorities upon that question. The recitals in the deed that Maria had been the slave of Isaac Hamilton and that she was then a free woman constitute all the evidence upon this subject so far as we have been enabled to find. The parties who claim that the deed of trust was void because of the fact that she was a slave at the time that it was executed had the burden upon them to prove her disqualification to receive the gift. (Guess v. Lubbock, 5 Tex. 535; Carter v. Marks, 17 Tex. 539 [17 Tex. 539].) The learned judge who wrote the opinion of the Court of Civil Appeals as well as the counsel for interveners reason upon this basis, that Maria, having been a slave, could not have been emancipated in Texas under the Constitution and laws of the State and have remained in the State. Assuming that the statement of Hamilton that Maria was a free woman at the time he made the deed to her is not conclusive upon them, the law requires of the intervenors, who stand in the same attitude to the case that Hamilton himself would, if living, to prove that the emancipation did not occur at a time nor in a manner by which *Page 22 it might have been lawfully done. (Guess v. Lubbock, 5 Tex. 535 [5 Tex. 535]; Carter v. Marks, 17 Tex. 539.) The evidence shows that Hamilton resided in Texas before the revolution, or at least that he was a citizen of Texas at the time of the massacre at Goliad and continued to be a citizen of this State up to the time of his death. He might have emancipated his slave at any time before the 17th day of March, 1836, and other facts recited in the deed would tend to show that she had been a free woman for many years prior to the date of the deed, for one of the considerations expressed in that instrument is the sum of $5,000 borrowed from her, at the time that she had been free necessarily, because she could not have owned the money unless she were free; at any rate, there is no fact or circumstance which would tend to show that she had not been emancipated by Hamilton at a time when he could lawfully have done so. The interveners have wholly failed to point out any fact other than the recitals in the deed which would show anything connected with the status of Maria Hamilton except the fact that she lived with Isaac D. Hamilton up to the time of his death, and the Court of Civil Appeals finds that she was living with him as his concubine, which was not inconsistent with her freedom. The interveners having failed to show that the recital of her being free in the deed was not true, failed to overthrow the deed as a conveyance to the woman, Maria Hamilton.
Warren Brown was the first settler upon each of two different tracts of land of 160 acres each, parts of the Isaac D. Hamilton survey. The tract known in this litigation as the Mills tract was not involved in this suit, but the Nona Mills Company claimed that the occupants of that tract were its tenants, and introduced evidence of the occupancy of that 160 acres to sustain its plea of limitation whereby it claimed title to the whole survey. The discussion of the question of limitation by the Court of Civil Appeals and the facts stated by it relate to the Mills tract. We make this statement to avoid confusion in the discussion of the issue presented upon the contest over the other 160 acres, which was first settled by Warren Brown and known as the Wright tract. Wright, Chester and Roberts claimed this 160 acres jointly and made the defense against the plaintiffs and the interveners that they had acquired the title by the statute of ten years limitation. The trial court instructed the jury to find against Wright, Chester and Roberts except for eleven acres which had been enclosed within a fence. The substance of the evidence upon this subject we state as follows: Warren Brown about the year 1890 went upon the Isaac D. Hamilton survey and established a camp at the point where Wright's residence and improvements are now situated. Brown went there for the purpose of hunting game and intended to make that his home and to claim 160 acres of the land for himself under the ten years statute of limitation. He built a camp, but made no other improvements, and remained upon the place about one year, when he let his brother, who was living with him, have his claim and Warren Brown moved away settling upon the land known as the Mills tract. The brother of Warren Brown, after staying there one year, got into some trouble *Page 23 and had to leave the country, leaving one Devore in possession, who failed to pay for the claim and turned the possession over to Warren Brown in 1894 and the latter moved upon it again, at which time there was a box house and a smoke house upon the land with about three acres under fence, but it does not appear by whom nor when the improvements were placed on the land. Warren Brown, who returned and took possession of the improvements and the claim, at an uncertain date sold his claim, right and title, by a writing, to Henry Peterson, who took possession of the land when Brown moved out. Henry Peterson had a brother who was with him upon the place and it is not very definite whether the conveyance of Brown was to Henry Peterson or to his brother, but they were living together and acting together and Henry Peterson testifies that the property was his own. In 1896, Henry Peterson conveyed his claim to the 160 acres to L.P. Wright, the defendant, who went immediately into possession and has remained in the possession ever since. At some time which is not made certain, Wright transferred an undivided interest of 55 acres to Chester and Roberts, but Wright continued in the possession, holding the land for himself and his joint owners, until this suit was begun, which was on the 22d day of April, 1903.
Wright, Chester and Roberts insist that the trial judge erred in directing the jury to find for the Nona Mills Company all of the land claimed by them except eleven acres, because the evidence raised the issue of ten years limitation which should have been submitted to the jury. If there be any evidence from which a jury could find in the defendants' favor upon the issue of limitation the judgment as to them must be reversed and the cause remanded. While it is true that the jury are the judges of the facts and of the weight of the evidence, they can not find a fact without some evidence, nor accord weight to that which has no probative value. It was essential to the finding in favor of the plaintiffs in error under their claim of limitation that there should be some evidence which would justify the conclusion that Wright, Chester and Roberts, and those under whom they claimed, had held the adverse, peaceable possession of the land continuously for a period of ten years prior to the institution of the suit. To constitute adverse possession the party occupying the land must in some way appropriate the land for some purpose to which it is adapted. Mere occupancy of land without any evidence of an intention to appropriate it will not support the statute of limitation. (Sellman v. Hardin, 58 Tex. 86.)
The possession of the land from the time Warren Brown first entered upon it in 1890 or 1891 was continuous, passing from him consecutively to his brother, who delivered it to Devore, who returned it to Warren Brown in 1894. Warren Brown made no improvements upon the land during his first occupancy except to build a camp. He went upon the land for the purpose of hunting "varments," as he states. He evinced no purpose to use the land in any way whatever and did not use it except in the mere act of pitching his camp thereon. The possession to be adverse must be of that character which would notify the owner of the intention of the occupant of *Page 24 the land to appropriate it to his own use. It surely can not be contended that the camping upon a tract of wild land would constitute such adverse possession as would notify the owner that his land was being claimed by another. There is not as much evidence of an intention to appropriate the land by Brown as there was in the case cited above, in which the claimant maintained hog pens upon the land and had used it for the purpose of feeding his hogs thereon for many years, during which time he had cut and carried away fire wood from it and protected the land from trespass by other people, at the same time using it as a ranch for his cattle and horses. In that case (Sellman v. Hardin, cited above), the court said: "The court did not err in holding that the evidence offered by the appellant was not sufficient to show such adverse possession as would sustain his plea of limitation." There is no evidence of the construction upon this land of anything more permanent than the camp pitched by Warren Brown, nor of any use of the land until the year 1894 when Brown says that he returned to the land, found upon it a house, a room 18 by 20 feet, and a smoke house, but he does not state when these houses were constructed upon the land nor by whom. Upon this testimony the jury could not find that the houses had been built upon the land and occupied at a time ten years prior to April 22, 1903; therefore there is no evidence of such adverse possession of the land by Brown and those who succeeded him, prior to his second occupancy, as would justify a verdict in favor of the defendants on the ten years statute, and the court correctly instructed the jury to find against them upon that issue. It is true that the court, at the request of plaintiff, directed the jury to find for defendants eleven acres of the land "embraced within the enclosure of and including the improvements of said L.P. Wright" to which they were not entitled under the evidence. The fact that the plaintiffs conceded to Wright, Chester and Roberts eleven acres to which the evidence did not entitle them does not justify this court in holding that the jury might have found that they were entitled to 160 acres.
The Court of Civil Appeals erred in reversing the judgment of the District Court, and it is therefore ordered that the judgment of the Court of Civil Appeals be reversed and the judgment of the District Court be affirmed.
Reversed and judgment of District Court affirmed.