146 S.W. 612 | Tex. App. | 1912
Lead Opinion
This was a suit by Geo. L. Anthony in trespass to try title to recover certain school land. Geo. L. Anthony having applied to purchase the land, it was awarded to him, and he settled upon it. Thereafter he and one Johnson entered into an agreement with reference to a sale of the land to Johnson, and, in pursuance thereof, a deed was executed from Anthony to Johnson. The testimony is sufficient, we think, to raise an issue with reference to this deed as to whether it was intended as an absolute conveyance, or whether it was intended by the parties that the deed should be ineffective, unless the sale was approved by the land commissioner of the state of Texas, and Johnson was accepted as purchaser of the land. The testimony, we think, very strongly preponderates in favor of the latter view, but there is sufficient testimony to raise the issue as stated. Shortly after this trade Anthony left the land, and went to East Texas. He was gone seven months and twenty days. After he had been gone about a month, the land commissioner forfeited his purchase of the land for nonoccupancy. As in nearly all instances where the issue of abandonment of school land arises, the testimony in this case is conflicting as to whether Anthony failed to reside on the land within the meaning of the school land laws, and as to whether his absence was merely temporary, and was or not a failure to reside on the land. Afterwards appellee applied to purchase the land. It was awarded to him, and this suit brought by the appellant against the appellee resulted.
The first assignment of error is that the court erred in that portion of his charge in which he stated that if the jury believed that Geo. L. Anthony on or before the expiration of 90 days from the date of the award of said land to him by the Commissioner of the General Land Office was in person and in good faith an actual bona fide settler on said land, and that within 30 days from the date of said settlement, if any, the plaintiff made and filed with the Commissioner of the General Land Office his affidavit of settlement, this plaintiff could recover; the vice complained of in the charge being that the law does not require the purchaser to file his affidavit of settlement within 30 days from the date of the settlement, but only within 30 days after the expiration of 90 days from the date of his purchase, and it is complained that this charge was, in effect, a peremptory instruction, because the undisputed facts were that he had filed it within 30 days after the expiration of the 90 days, but not, as stated in the charge, within 30 days of the date of settlement. To this it is replied by the appellee that there was an agreement between the parties substantially to the effect that Anthony had complied with every prerequisite of purchase except occupancy, and that such agreement makes this error in the charge harmless error. It may be stated in this connection that said agreement was that Anthony made affidavit of such settlement and forwarded it to the General Land Office, but there is no agreement that the filed it within the required time. It is very difficult to determine whether this error in the charge is such as should reverse the case or not. For the appellee it may be said that there was no contention made that plaintiff had *614 not filed his affidavit of settlement, as required by law; on the other hand, for the appellant it may be said that the jury were told that, before he could recover, he must have shown that he filed it within 30 days of settlement, and the undisputed facts being that he only filed it within 30 days of the 90 days allowed by law, and that he had not complied with the requirement of the charge, it is to be presumed that the jury followed the charge of the court, and were thereby misled.
We conclude that the error was reversible error (see Pullman Co. v. Custer, 140 S.W. 849), in that it was reasonably calculated to have misled the jury, unless on the whole case we should conclude that no verdict could have been rendered except one for the defendant. The only issue in the case which could possibly have required a peremptory instruction for the defendant was the one of plaintiff's abandonment of the property. The testimony of Anthony himself is the strongest that there is in the case which tends to show occupancy.
Anthony testified: "I occupied the cottage myself and have always continued to reside there. That has been my home since I settled there in 1906 up to the present time. I have never had any other home but that home. I have been there continuously since that time until now, unless I was called off by business. I have had no other home. I have been off my land purely on business. When I have anything to do I have to go off the land, as I have no one else to attend to my business. I went East on business. I went East to sell a piece of land I had in Van Zandt county. I was away the first time four to six weeks. I returned. I lived on the land. I went East afterwards when I had a transaction with a man named Johnson. I was away for a while. I could not get back, but it was still my home. My purpose in going East was I wanted to get rid of some land I have there, so I could live here more easy. I was gone something over seven months. My attorney advised me I could go. Had it not been for that, I would not have gone. I did not leave here with any intention of leaving. During my absence my home was on section 44. I have had no other home. I left the 14th or 15th of September, and my land was canceled on 6th of November. I got notice some time after that. I went back to section 44 somewhere about the 1st to 5th of May. That is my home now with the very best of faith, because I have no other home. After the transaction with Johnson, the land remained mine, and I considered it so. I did not consider that I made any transaction with Johnson until it was approved. When I was gone six weeks the first time Terrell, the land commissioner, wrote me to come back. I have made proof of occupancy on my land not long ago, since the trial of this case last time. From September 14th to about May 6th I was away. While away went to Austin to pay out; found I had been canceled. I was in the land business in a place while I was away. I was trying to sell my own land and other land so I could get back here. I was not a land agent, but had access to some lands I could sell. I clerked for Bush at Grand Saline. I had charge of the business for them a little while. One of them was sick. They did not pay me a salary. I did not make any trades for other people while I was there. I did not sell my own land until afterwards. I was in and out there, in charge of the business for Bush Bros., three or four months, boarded at the hotel, and lived in the country with a friend of mine. I had been down there about a month when I had my trunk sent to me. I had left the trunk when I went away in September. Leaving Grand Saline in March, I went to Gainesville and Terrell. In Gainesville I consummated a trade. Then went to Austin. After I saw Terrell there, I came right on home. I had been to Austin, made my payments and came home. I made a memorandum on the wall of when I came home. Robison at Austin told me to go back and stay on the land; that the Land Department had no right to cancel the land. Then I went up there after so long a time and got my money from Mr. King, $750, at Gainesville. Then I went to Austin, went to see Terrell. He wasn't in; saw Robison. He said: `You attend to your interest here, and go back to your land.'"
The cases of Bustin v. Robinson (Sup.)
The court properly submitted to the jury the issue of whether Anthony's deed to Johnson was an absolute one, and correctly told them that they could not consider the forfeiture by the land commissioner.
What has been said removes the materiality of the assignment predicated on the refusal to permit Anthony to testify to intention.
For the reasons indicated, the case is affirmed.
McKENZIE, J., who was of counsel, disqualified, and not sitting.
Addendum
This being true, a number of errors which we think were committed become immaterial.
(a) The testimony of Geo. L. Anthony that he intended to return was admissible as against the objection that it was a conclusion, but the testimony as a whole disclosing, as a matter of law, an abandonment, the error becomes immaterial.
(b) The testimony of Leavell, Beauchamp, and Love, which tended to show that the transaction between Anthony and Johnson was not an absolute conveyance, was admissible, but, in the condition of this record, becomes Immaterial.
If the verdict in this case had been in favor of Anthony, we are of opinion that we should have been obliged to reverse and render the case for Ball on these facts.