
    Burris v. Wideman.
    Where the widow of n colonist; who had died leaving one child by her, in consideration of the survey and patenting of a headright certificate which had been issued to the legal representatives of the deceased, contracted to make such title to one half as the Government should make to her, and the patents wore issued to the legal representatives of the deceased husband : Held, That although the widow was not shown to be the legal representative of her deceased hushand, yet that she was entitled to one half the land as her community, and that to the extent of ono half of that interest she was bound: Held, also, That if the widow had been shown to have been the guardian of the heir, the inquiry would have been opened how far tho contract was a beneficial one for the heir and necessary for the security of her rights. (Note 38.)
    Error from Lamar. This suit was brought for a specific performance of a contract for one half league and half labor of land. The petition stated that in December, 183C, one Mary Ann Dick, widow of Joseph Dick, in consideration that Maunsel W. Mathews, Burris & Co. would pay and advance all the expenses and fees due to tho Government of Texas necessary to proving- title to a league and labor of land to, which she, the said Mary Ann, represented that she was entitled, bound herself, tier heirs, executors, administrators, and assigns to make to them such title as tho Government made to her for one-lialf of the said laud; that the other members of the firm hart assigned all of their interest in the contract to the plaiiitiff; that subsequently to the making of the contract Mary Ann Dick departed this fife, leaving as her sole heir Sally Ann Dick, and that Edward Wideman liad been appointed guardian of the said Sally Ann, and that as guardian lie liad acknowledged "the contract and requested that the plaintiff should perform the sume; that in pursuance thereof lie had fully performed on his part; that he liad located tho one-lialf of the land as directed by the said guardian for his ward, and with the consent and approbation of the said guardian had located the other half for himself, and had procured patents from the State for both locations, but that the patents had issued granting the land to the heirs of Joseph Dick; that Wide-man, the guardian, refused to make title to the plaintiff for the half of the land; prayed citation to the guardian and for a decree for title. The guardian acknowledged service of the citation, but failed to answer, and the petition was taken as confessed. The judge dismissed the suit.
    
      W. II. Millwee, for plaintiff in error.
   Lipscomb, J.

If the covenant set out in the petition were to receive a strict literal construction on tho facts disclosed, the plaintiff could not sustain an action at common law, because the undertaking of Mrs. Dick is to convey such title as she shall receive from the Government, and the petition shows that no title was received by her or through her to the land in question. The grant of the Government is to the heirs of Joseph Dick; and it is founded on a certificate of the board of land commissioners in favor of the legal representatives of Joseph Diclc. This appears from the patent's exhibited as vouchers to the plaintiff’s petition. Consequently there lias been no breach of tho covenant.

But courts of equity act on more liberal and expansive principles of justice in construing such contracts, and will give effect to the real object and intent of the parties. Tho covenant, as before said, taken in its literal sense, refers to land claimed by Mrs. Diclc in her own name; yet there can he no doubt that when the subject-matter of her undertaking is considered it was the same right conveyed by the certificate of ¡ho board of land commissioners to tho legal representatives of Joseph Diclc that Doth parties liad in view. And to the extent of her interest she had tho capacity to bind herself as the widow of Joseph Diclc. Under the law of community she was entitled to one half the lands to he located under the certificate issued by the board of land commissioners in favor of the legal representatives of her husband. An equitable con-structlon of the contract would not permit it to extend to her whole interest, as she could not have intended to convey more than one half of her interest in the lands to be located. If she had the capacity as the legal representative of her husband or guardian of their infant child to create a lien on the other half, it should have been shown by the plaintiff. Tiie petition, however, does not disclose who was the legal representative of Joseph Dick, or who the guardian of his infant child at the date of the covenant sued on. The petition is very imperfect ; it charges no facts by which the half of the lands belonging to the heir of Joseph Dick could be either in law or equity bound by the contract of his widow, Mrs. Dick. It is, however, not improbable that she was, at tiie date of her contract, both the legal representative of her husband and tho guardian of his infant heir. If this had been shown, it would have opened tile inquiry as to how far tiie contract was a beneficial one -for the heir and necessary to the security of her rights. But as the case is presented, if tho facts charged arc to he taken as true,'the plaintiff has just claim to the one half of tiie laud to which Mrs. Dick was entitled; and her daughter, the ward of the defendant, took the land by descent from her mother, subject to tiie plaintiff’s right acquired under his covenant witii her.

"Note 38. — I-Ieadrighfc certificates issued under tho Constitution of the Republic and the law of 1837 formed part of the community property. (Parker v. Chance, 11 T., 513.)

We believe the petitioner was entitled to relief, and that the court erred in dismissing his suit.

Judgment reversed.  