Further consideration of this case on appellee's motion for rehearing has confirmed me in the views heretofore expressed, and, as the majority of the court has filed an additional opinion, I deem it proper to make some additional observations myself.
As appears from the former opinions, the controlling question in the case is whether or not the land involved was the separate property of George Stiles, or the community property of himself and his wife. Both the majority opinions seem to lay stress upon, and cite authorities to show, that when the law requires certain things to be done within a designated time in order to obtain a complete title from the government, the failure to perform any portion of what is required within the time specified is fatal to the claim, and therefor the alleged title is invalid. Patton v. Skidmore, 19 Tex. 540, and Edgar v. Galveston Co.,21 Tex. 330, cited in the opinion of Mr. Justice Jenkins, as well as several cited in the opinion of Mr. Justice Rice, belong to that class, and announce a doctrine not disputed by me; and in the latter case it is said: "The right of the plaintiff to the land, if any he ever had, was lost by his neglect to file his application for survey within the proper time." That language implies that at one time the plaintiff may have had an equitable title to the land.
Also the last majority opinion gives an Illustration as to title acquired by limitation, to the effect that when the adverse possession begins during coverture and is completed after the death of the wife, the title thus acquired by limitation becomes the separate property of the husband; and, in support of that proposition Bishop v. Lusk,8 Tex. Civ. App. 32, 27 S.W. 306, and Gafford v. Foster,36 Tex. Civ. App. 56, 81 S.W. 63, are cited. The reverse of that proposition was held by the Galveston Court of Civil Appeals in Texas N. O. Ry. Co. v. Spelghts, 59 S.W. 572, and Alford Whitesides v. Williams, 41 Tex. Civ. App. 436, 91 S.W. 636. That identical question does not appear to have been passed upon by the Supreme Court, but in the case of McClintic v. Midland Grocery Dry Goods Co. (Sup.)154 S.W. 1157, decided during the present term, that court cited with apparent approval Alford Whitesides v. Williams. In 3 King's Conflicting Cases, §§ 68, 154, 260, it is stated that Bishop v. Lusk, Gafford v. Foster and several other decisions cited in the note to section 260 are, in effect, overruled by Creamer v. Briscoe, 101 Tex. 490,109 S.W. 911, 17 I. R. A. (N. S.) 154, 130 Am. St. Rep. 869, and it is there said: "The decision of the Supreme Court in the Creamer Case, being the latest expression of that court, must be construed as overruling not only the Votaw Case [15 Tex. Civ. App. 87, 38 S.W. 215], but also Buford v. Bostick [58 Tex. 63]; Roberts v. Trout [13 Tex. Civ. App. 70,35 S.W. 323]; Bishop v. *Page 1026 Lusk, Mitchell v. Nix [1 Posey, Unrep.Gas. 126], and Gafford v. Foster. "Then it must follow that where the wife dies before the three years' occupancy has been completed, the title to the homestead donation is in the community; and, when the wife dies before the bar is complete under the three, five, or ten years statute, it is likewise community." And in that excellent compilation, the American English Encyclopedia of Law (volume 6, p. 325) the text reads: "But when the prescription begins before and ends during the marriage, the title takes effect as of the time when the prescription begins, and is therefore separate property."
It is also to be noted that in the last majority opinion seemingly an effort is made to discount and break the force of the decisions made by the Supreme Court in Manchaca v. Field, 62 Tex. 135, and Welder v. Lambert, 91 Tex. 510, 44 S.W. 281. As to the former it is stated that the opinion was rendered by a special judge, and an effort is made to show that it is not supported by the decisions cited by him in support of the conclusion there reached; and it is finally stated that in that case, and in Welder v. Lambert, the Spanish law as to community property was involved, while the case in hand is controlled by our statute upon the subject. As to the first criticism of the Manchaca Case, it is sufficient to say that a judge is a judge, and it is immaterial whether his time of service be long or short — his powers and authority are the same. As to the other criticism against that case, if it is not supported by the decisions therein cited, it is approved by the subsequent case of Welder v. Lambert, where it is extensively quoted from by Chief Justice Gaines, and by McClintic v. Midland Grocery Dry Goods Co., supra, which involved our community statute.
Nor is it believed that there is any merit in the distinction sought to be drawn from the fact that Manchaca v. Field and Welder v. Lambert, involved the Spanish law, while the case at bar comes under our statute regulating community and separate property rights. Both systems of law have what are designated "community property rights"; and, while it is admitted in the majority opinion that our statute upon that subject drew its inspiration from the civil law, it seems to be contended, without pointing out any reasons therefor, that the same construction placed by our Supreme Court upon the Spanish or civil law, in determining what constitutes the origin or inception of title, should not be placed upon our statute regulating community property. To my mind the analogy is obvious, and the rule which applies to one class should apply to both; and in that view I am supported by declarations of the Supreme Court in Creamer v. Briscoe and McClintic v. Midland Grocery Dry Goods Co., supra. In the former case, which involved a construction of our community statute, the Supreme Court said: "Mills v. Brown," which involved our community statute, "fully recognizes as applicable to such cases the principle, more fully discussed afterwards in the case of Welder v. Lambert, 91 Tex. 510 [44 S.W. 281], that the character of title to property, as separate or community, depends upon the existence or nonexistence of the marriage at the time of the incipiency of the right in virtue of which the title is finally extended, and that the title, when extended, relates back to that time." Thus it will be seen that the Supreme Court treated the principle in the two classes of cases as identical; and in the McClintic Case the court said: "In a controversy like this, to which the state is not a party, involving an issue as to whether public land purchased from the state in the name either of husband or wife is community property or separate property, the status of the property must be determined by the character of the right by which the title thereto had its inception. Such, it seems, was the rule under the Spanish law; such has been the rule under the Revised Civil Code of Louisiana, in which state the community system prevails; and such is the rule under the statutes and decisions of this state. Welder v. Lambert,91 Tex. 510 [44 S.W. 281]; Sparks v. Taylor, 99 Tex. 411 [90 S.W. 485, 6 L.R.A. (N. S.) 381]; Creamer v. Btiscoe, 101 Tex. 490 [109 S.W. 911, 17 L.R.A. (N. S.) 154, 130 Am. St. Rep. 869]; Ullmann v. Jasper, 70 Tex. 446 [7 S.W. 763]; Manchaca v. Field, 62 Tex. 135; Mills v. Brown, 69 Tex. 244 [6 S.W. 612]; Alford Whitesides v. Williams, 41 Tex. Civ. App. 436,91 S.W. 636; Allen v. Allen, 101 Tex. 362 [107 S.W. 528]; Miller v. Odom, 152 S.W. 1185." So it appears from former decisions, and from the last utterance of the Supreme Court upon the subject, that the distinction sought to be made in the majority opinion does not exist; and therefore Manchaca v. Field and Welder v. Lambert are as much authority in this case as Mills v. Brown and Creamer v. Briscoe.
In the case at bar the majority of the court seem to concede that if the Rawlses had any right to their respective tracts of land at the time they conveyed them, then, as Stiles acquired those rights while he was a single man, the lands in controversy were his separate property, although the consideration thereafter paid to the state may have been community property. Their contention is that the inception of the Rawlses' title was the payment to the state of the purchase money, and that nothing behind that fact can be looked to in determining whether the land was the separate property of Stiles or the community property of himself and his wife. That position involves the contention, clearly presented in the last opinion, that the act of August 26, 1856, and what had been done by the Rawlses in pursuance of that act at the time they undertook to sell the land, vested in them no right to the land; *Page 1027 and the logical result of that contention would be that at the time they attempted to sell the lands they had no right to the possession and use of them as against the state or anyone else.
My position is that when the statute went into effect, or, at any rate, as soon as they accepted its terms by making proof of their occupancy, having the land surveyed and returning the field notes to the land office, they had a vested contract interest in the lands, which was a property right constituting an equitable title, which they could alienate, and which was binding upon the state; and, in support of that proposition, reference is made to Ryan v. Jackson, 11 Tex. 391, and Manchaca v. Field, supra. In both of those cases the Supreme Court was called upon to determine the rights of colonists who had obtained concessions under the colonization law of March 24, 1825 (Laws of Coahuila Texas, p. 15). That law permitted colonists to purchase lands at certain specified prices, and required a would-be purchaser to first make the necessary proof before a proper officer and obtain a concession, which was nothing more than an official proclamation or certificate, stating that the person designated had made necessary proof to become a purchaser, and that he was granted the right to select the quantity of land referred to within the territory specified in the concession, and the proper officer was directed to put him in possession, etc. The law did not require the land to be paid for until after it had been selected and surveyed, and even then it was within the discretion of the officer making the sale to sell for cash or on time; and in the Ryan-Jackson Case, the Supreme Court said: "We are aware of no provision of law which forbade the grantee, who acquired by purchase under the twenty-fourth article of the law of the 24th of March, 1825, to sell so soon as he had obtained his concession, and before the final title was issued. It is a right which would appertain to the grantee on general principles. The right of property in the concession includes the power of disposition, subject only to such restrictions and qualifications as may be imposed by law. Where the law imposes no restriction, the power is absolute, and there does not appear to have been any restriction upon the power of alienation imposed by the law in this case, except that contained in the twenty-seventh article, that the purchaser should be obliged to perform the condition of cultivation."
In Manchaca v. Field, supra, it was held that when a colonist was a married man at the time he procured his concession under the act of March 24, 1825, the land subsequently acquired by virtue of that concession was community property, although his wife died soon after he obtained the concession and before the purchase money had been paid, or anything else done looking to the acquisition of the land. In that case, while it was not done, the court might have cited Ryan v. Jackson in support of the holding that the concession vested in its holder a property right which could be the subject of sale. The analogy of those cases is this: The concession issued to the colonist constituted his right to make a selection of a certain number of acres of land within a certain territory and buy the same from the government at the price fixed by the law. In the case at bar the statute of August 26, 1856, had as much force and effect as a concession issued under the colonization law of 1825, because it, in terms, authorized each settler to buy, and, in effect, offered to sell to him 160 acres of land to be selected by him so as to include his improvements. This law of itself was certainly equivalent to a concession under the law of March 24, 1825; and, following the rule announced and applied in Ryan v. Jackson and Manchaca v. Field, supra, it seems that the Rawlses had an assignable interest in the land, even before they took any steps looking to a further selection and designation. But it appears from the recitals in the Stiles chain of title that they had made proof of their occupancy, caused their lands to be surveyed, etc., and had thereby applied the statute of August 26, 1856, to the indentical lands now in controversy, and which, after having them so surveyed, they conveyed to Stiles.
Thus it seems clear to me that at the time the Rawlses conveyed the land they had a contract to purchase it from the state, which contract was binding upon both parties, and constituted a property right in reference to the land, which right they could and did sell: and, by virtue of such sale, as is shown on the face of the patents, the two tracts of land were granted by the state to Stiles. In purchasing the Rawlses title Stiles not only acquired whatever rights the Rawlses had to the lands, but he assumed the payment to the state of whatever amount might become due to it, as shown by stipulations in the deeds by which he acquired the Rawlses' title; and the state could have maintained a suit against him and recovered the purchase money upon his written promise therein to pay the same, although such promise was not made to the state. Spann v. Cochran Ewing, 63 Tex. 240.
With due respect to my Associates, I believe they have failed to apprehend the full purport and meaning of the statute of August 26, 1856, and the distinction made by the Supreme Court in Welder v. Lambert and Creamer v. Briscoe, supra. In the latter case the distinction is clearly pointed out by Mr. Justice Williams, in which, after making a quotation from Buford v. Bostick, 58 Tex. 63, where the court said that a pre-emption claim, until perfected, is not a title defeasible upon the nonperformance of conditions subsequent, but is a mere inchoate right which *Page 1028 may ripen into a perfect title upon the performance of certain conditions precedent, etc., it is said: "This characterization of the right of a homestead or pre-emption claimant as against the state may be correct enough, and the question whether or not such a claim to land is title or color of title under the statute of limitations may depend upon its legal standing as between the claimant and the state. But when the question is one between the husband and wife as to their respective rights, other considerations should control, and are made to control, by the reasoning in Mills v. Brown. "It is not correct to say that a husband and wife, who have settled upon public lands under the law giving them the right to occupy and improve it and eventually to obtain title by such occupancy and improvement, acquire no right prior to the running of the prescribed time. It is true that they do not acquire a complete title, legal or equitable, until they have possessed for such time, but it does not follow that they do not acquire a right in the land which afterwards merges in and determines the character of the title. From the time of the initial steps, the settlement, they have the right to hold and use the land as owners against any one but the state, and against the state at least so long as they comply with the law and it remains unchanged. They are authorized to sell their claim and the purchaser becomes entitled to take possession, to complete the occupancy and to acquire the title. It would hardly be contended that the price of such a sale would not be community property. And, perhaps, we hazard nothing in saying that, if it should become necessary for a court, upon separation of the husband and wife, to partition their property between them before the expiration of the three years, the land held by them under such a settlement would have to be taken into account as their joint property, and their rights with respect to it adjusted in some appropriate way. It is evident, therefore, that they do acquire rights of property in or with respect to land so held even before they have entitled themselves to a patent from the state." In that case the property was acquired under a pre-emption law which required occupancy for a specified time, and did not require the payment of any money for the land. There settlement, survey, and return of the field notes were the initial steps; and it is stated in a previous part of the opinion that Creamer and his wife had settled upon the land as a homestead donation, and had done everything necessary to that end, except to complete the three years' occupancy, and therefore it was held that the marital status of the settler at the time the survey and settlement were made would determine whether the property was separate or community.
In the case at bar, and in reference to the land here in controversy, no one could purchase it from the state by paying 50 cents an acre for it to the Commissioner of the Land Office, as was done in this case, except the person who was an actual settler upon it at the time the act of August 26, 1856, went into effect, or the vendee of such settler; and therefore the inception of the title was the passage of the statute referred to, and the fact that the Rawlses were at that time settlers upon the land. But if that proposition is not correct, then the proof of settlement and causing the land to be surveyed was the inception of the title. In order to purchase the land from the state the law required three things, one of which must have been an existing fact when the law went into effect, and the other two were to be subsequently performed by the purchaser, and these were: (1) That the purchaser should be an actual settler upon the land at the time the law went into effect; (2) that he have the land surveyed, etc., within a designated time; and (3) that by the time specified in the law he or his vendee should pay to the Commissioner of the Land Office 50 cents an acre for the land. This left but two things for the purchaser or his vendee to do, and one of these things, viz., having the land surveyed, etc., had been done in this case within the time required by the statute and before Stiles purchased. This was partial performance on the part of the purchaser, and it operated as an acceptance on his part and an implied obligation to pay to the state 50 cents an acre for the land. This being true, his right to secure absolute title by performance of the additional obligation was fixed, and it was a right which constituted an equitable title to the land. It was what the court designated an "incomplete equitable title" in the Creamer Case.
In Simpson v. Oats, 102 Tex. 188, 114 S.W. 106, quoted from in the last majority opinion, the quotation is followed by this language: "The present case is distinguishable from Creamer v. Briscoe, 101 Tex. 490 [109 S.W. 911, 17 L.R.A. (N. S.) 154, 130 Am. St. Rep. 869], in the fact that in that case all of 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. We held in that case that the land was the community property of the deceased wife and her husband. The very things — survey and return of 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 statute construed in that case merely allowed actual settlers 12 months from the passage of the act in which to take the necessary steps to secure the land as a homestead. And as the homestead law required the land to be surveyed and the field notes returned and three years' occupancy thereafter, the Supreme Court held that *Page 1029 occupancy, without a survey and return of the field notes, created no right.
The case of Barbet v. Langlois, 5 La. Ann. 215, quoted from by Mr. Justice Jenkins, does not militate against my position in this case. That case is quoted from by Chief Justice Gaines in Welder v. Lambert, and our Supreme Court very properly gave weight to it because it related to a provision of the Code of that state, which declared that all property acquired by purchase during coverture was community property. In that case, as well as in most of the Texas cases on the subject, the court was called on to decide whether the property belonged to the community or to the separate estate of the original purchaser, while in the case at bar the question is whether or not the property was community or separate property of a vendee of the original purchaser. However, if the Rawlses had not sold to Stiles, and had perfected their titles by paying to the state the purchase money, whether or not the lands would have been separate or community property between themselves and their wives would not, in my opinion, have depended upon whether the purchase money was paid with separate or community funds, and the Louisiana case referred to supports that view. In that case Langlois owned a tract of land fronting on a bayou. After he acquired it and in the year 1818, he married, and in 1822, during his coverture, he purchased from the government, by virtue of his right of preference, the lands lying in the rear of his tract. 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 in becoming the purchaser of the vacant land adjacent to and back of his own tract to a depth of 40 arpents. That law seems to have been limited by its terms to three years; but it was revived or re-enacted in 1820, and was in force when Langlois made his second purchase. It does not appear that he had the land surveyed or took any steps whatever looking to its acquisition until after his marriage. Nevertheless, the court held that because the renewing statute of 1820 was a fulfillment of the reasonable expectation of those who had acquired lands bordering on rivers, etc., and was intended to relieve from the consequences of omissions to purchase additional lands while the act of 1811 was in force, therefore Langlois' title must be considered as originating before his marriage. The decision in that case goes further than any decision in this state in holding that property acquired after marriage is separate property, because in that case no steps were taken to purchase the land until after the marriage, and the law under which it was purchased was not enacted until after the marriage. But in so far as this case is concerned, the pith of the decision is that the law was enacted for the benefit of a certain class of persons, and the court held that because Langlois became one of that class of persons before his marriage, therefore his purchase after his marriage would relate back and fix the status of the property as belonging to his separate estate.
The second section of the act of August 26, 1856, involved in this case was enacted for the benefit of a certain class of persons described therein as actual settlers at the time the law went into effect; and if the Louisiana case is sound, it is certainly permissible to go back to the time the law went into effect and ascertain whether the settler was a married or single man in determining whether or not such land would belong to the community or to his separate estate. In fact the Louisiana case would seem to justify going back to the time when the settlement was made.
But, as stated before, the question in this case is not whether J. T. and W. W. Rawls' title was community or separate property, but the question is whether or not they had an equitable title to the land when they conveyed the same in January, 1858. If they had such title — whether separate or community property — such title was vested in Stiles; and, although the legal title remained in the state, the title so vested in Stiles was the paramount and superior title, and his acquisition of it should be considered the inception of his title, and, as he was then a single man, the land became his separate property.
In view of the authorities which have been cited in support of my views, and after giving to the case the best thought of which I am capable, I feel quite sure that it ought to be held that when the Rawlses accepted the terms of the act of August 26, 1856, by making proof of their settlement, procuring an official survey, etc., they had as much right to the land as a pre-emptor had when he had settled upon, had the land surveyed, etc., but had not resided upon it the length of time required by law in order to perfect his title; and it is well settled by the authorities, and, in effect, conceded by the last majority opinion, that such a settler has an equitable title. And in support of the proposition that the act of August 26, 1856, was a pre-emption law, I refer to Miller v. Moss, 65 Tex. 180. In that case it was shown that the land in controversy was in the Mississippi and Pacific Reservation; that Miller and his family settled upon it and improved it as early as 1855, and that they continued to occupy it until some time in 1862, when he went into the Confederate Army and died, and that since that time his family had not occupied it. On July 16, 1883, the land was patented to the heirs of Miller and they brought suit to recover it. The defendants made the contention that the patent was void because the Millers had never paid the state for the land; *Page 1030 but the Supreme Court held that they were not required to do so, because the act of March 24, 1871 (Laws 1871, c. 22), dispensed with the payment of any consideration if Miller and his family had occupied the land for a period of three years under any of the pre-emption laws, and had complied with the second section of the act of August 12, 1870 (Laws 1870, c. 53), and the court said: "That the act of August 26, 1856, was a pre-emption law its nature renders too clear, and that those claiming under it are classed as persons entitled to pre-emption is clearly shown by several statutes extending relief to persons holding under the several pre-emption laws." P. D. 4357-4362.
It seems to me that the holding of the majority of the court that at the time the Rawlses sold they had no fixed right in the land leads necessarily to the conclusion that, notwithstanding acceptance by settlers, by having their lands surveyed, still, although after such acceptance they may have made valuable improvements, the state at any time could have repealed the statute granting them the right to purchase, and ousted all who had not paid the purchase money prior to the repealing act. I deny the soundness of that proposition, and maintain that, after a settler had accepted under the statute by having the land surveyed, he had a vested right in the land. It clearly appears that J. T. and W. W. Rawls each made his proof of settlement on the 11th day of February, 1857, and that the lands were surveyed by virtue of such proof by the proper surveyor on the 2d day of April, 1857, which was about nine months before the Rawlses executed the deeds which resulted in the lands being patented to George Stiles, as assignee. As to the J. T. Rawls' survey, the deed from him, in effect, states that the field notes had been returned to the land office; but I do not consider that such return was necessary to constitute acceptance under the statute and fix his right to the land. The time had not then expired for such return to be made; and the proof of settlement and having the land surveyed constituted acceptance of the state's offer, and created a contract to purchase the land, binding upon both the state and Rawls.
For the reasons stated, I renew my dissent.