This was an action of trespass to try title brought in the District Court of Parker County by the appellees against the appellant on the 9th day of March, 1898, to recover 1920 acres of land, situated partly in said county and partly in Palo Pinto County. The defense was "not guilty" and limitation of five and ten years. On the trial, however, the defendant abandoned his pleas of limitation. The case was tried by a jury, and verdict and judgment went in favor of the plaintiffs, and the defendant has appealed.
On the trial the plaintiffs proved by undisputed evidence that their father, William T. Malone, served as a soldier in 1835 and 1836 in Captain Parrott's artillery company, and the muster rolls show that he was in camp at the siege of Bexar, November 23, 1835, with his company. He was not killed in the battle of the Alamo, but died in Lee County, Mississippi, in 1880. There was no evidence that any one by the name of William T. Malone fell at the Alamo, other than was contained in the bounty warrant issued by George W. Hockley, Secretary of War, as given below. In fact, the record index of the muster roll of those who fell at the Alamo, kept in the General Land Office, fails to give such name, and one witness who was acquainted with the ancestor of plaintiff testified that he knew him and served with him as a soldier in said war, and that he never knew or heard of any other man of that name who served as a soldier in the war between Texas and Mexico. The land in controversy was located and patented by virtue of bounty warrant No. 4005, issued by George W. Hockley, Secretary of War of the Republic of Texas, on July 5, 1838, which is as follows: "Republic of Texas. Know all men to whom these presents shall come that Wm. T. Malone, having served faithfully and honorably for the term of five months from the twenty-sixth day of September, 1835, to the sixth day of March, 1836, and having fallen in the Alamo, is entitled to nineteen hundred and twenty acres bounty land, for which this is his certificate; and said Wm. T. Malone or legal heirs is entitled to hold said land, or to sell, alienate, convey, and donate the same, and to exercise all rights of ownership over it. In testimony whereof I have hereunto set my hand, at Houston, this fifth day July, 1838. Geo. W. Hockley, Secretary of War." The patent was issued on the 20th day of August, 1872, to the "heirs of William T. Malone, deceased." The defendant, appellant here, proved that he was in possession of the land in controversy, and had been for about five years, claiming to own the same, and had a general warranty deed to 480 acres of it from W.H. Fain, dated in 1893. Fain had a general warranty deed to said 480 acres from J.E.B. Stewart, date not given in the record, and Stewart held the same under a general warranty deed from J.M. Abbott, dated April 28, 1885.
The sole issue, in effect, submitted to the jury was whether appellees were the heirs of the William T. Malone, on account of whose military services and recited death in the Alamo the certificate and patent were issued; the court instructing them, if they so found, to find for appellees, and, if not, to return a verdict for appellant. *Page 99
One of appellant's assignments of error complains that "the verdict and judgment is not supported by the evidence, in this: That the evidence shows that this land was patented, in 1872, to the heirs of William T. Malone, deceased; and the evidence also shows that the William T. Malone under whom these plaintiffs claim did not die until 1880; while the evidence further shows that the William T. Malone who was entitled to this land fell at the Alamo in 1836; it also showing that plaintiffs' ancestor did not take part in the battle of the Alamo." This assignment the court sustains, because the evidence is undisputed that the father of appellees, in whose right as heirs they claim title to this land, did not fall at the Alamo, but died in the State of Mississippi in 1880. The certificate or bounty warrant issued in this case establishes on its face that a William T. Malone fell at the Alamo on March 6, 1836 (Smith v. Walton, 82 Tex. 547), and for that reason, in part, the bounty of the Republic of Texas was extended to his heirs. These facts should be accepted as fully proven in this case. It matters not, then, that his name is not found among the list of those who fell in that cruel massacre, nor that one witness who served in that war never knew or heard of any other person by that name who served in that war except plaintiffs' ancestor. It was for the Secretary of War to determine the facts upon which the right to this bounty warrant depended, and, having issued the warrant, it is conclusive in this case that it was issued to the heirs of the William T. Malone who served in the Texas army from September 26, 1835, until March 6, 1836, and fell in that memorable battle, and not to the father of appellees, who was alive at that time, and continued in the flesh until 1880. See Graham v. Billings (Texas Civ. App.), 51 S.W. Rep., 645. Otherwise the grant itself would seem to be a nullity, because a grant made in terms to the heirs of a living man fails for want of a grantee. There are three things necessary to every valid grant, — a grantor, a grantee, and a certain thing granted. In this instance it is clear that, if the grant should be construed as a bounty to the heirs of appellees' father, it must fail for uncertainty; for no one could know who would be such, or how many he might have when he should die, and he could have no heirs until he died. So the grant is made to a class of persons not in existence. A grant to a dead man or a grantee not in existence was always void, both according to the common and the civil law. It is not so in Texas as to a dead man, because our statute provides that a grant to one who is dead shall invest title in his heirs or assigns, and this provision relates only to patents issued by the State. Gould v. West, 32 Tex. 339. A grant to one's children might be good, because it would take effect upon delivery, there being persons designated by these terms who could then take; but, in case of a grant to the heirs of a living person there is no one in whom the title can vest at the time of its execution and delivery, and, unless it vests, then it can never take effect. We are therefore of opinion that the undisputed evidence in this case affirmatively shows that the plaintiffs, appellees here, have no title to *Page 100 the land in controversy,nor to any part thereof, and that it was the duty of the District Court to so instruct the jury, and we therefore order that the judgment in this case be reversed, and we here now render same in favor of the appellant.
Reversed and rendered.