*1
143 SOUTHWESTERN
clqud
represen-
grantees
a
claimed title
where
to
to
defendant’s
remove the
from
and their
tract
arising
plaintiff’s
a
title
comply
failing
assigns
there-
to
tatives and
pleaded invalidity
award
believing
with,
record
and further
plaintiff
actual set-
because he was not an
exercised
land, setting
error
plaintiff’s
defendant
shows
promptly
tler on the
title
good
believing
defendant’s residence
the land
right,
proper application
award
faith under
of
for an
inequitable
perfnit
to
would be
rejected by
arbitrarily
the land to him
them,
error,
exercise
to
commissioner, and where the answer
specific performance
judgment
equitable relief, though
cancellation
redemption
or of
for the land
did not
defendant
ask
record,
when, according
to
late as
they
plaintiff,
of the award to
even
right,
a
such
to exercise
proved
plea
if
he could
not
have
judg-
record,
finding
errors
guilty every allegation in the answer.
things,
will,
in all
cases,
ment
the trial court
[Ed.
other
Note.—F'or
see Public
Lands,
Dig.
173.*]
Dec.
§
affirmed;
be
so ordered.
(§
173*)
7.Public
to Pur
Lands
—Award
chaser-Validity.
purchaser
Since
award
a
of school
an
to
purchaser
land does
fix title
et
ADM’R
al.
WILLIAMS’
BARNES v.
making
due
purchaser
complied
unless such
with the
(Court
Appeals
Amarillo.
of Texas.
of Civil
legally
authorizing
award,
an
and was
Rehearing,
1912.
Dec.
1911. On
Jan.
qualified
purchase,
plaintiff
an
2, 1912.)
Rehearing Denied Feb.
actual
it was awarded
setter
him,
open
(§
173*)
it remained
de-
settlement
1.
Lands—
Lands
Public
—School
Validity—Parties.
fendant, and,
if defendant
Awaed to Purchaser —
rejection
validity
were not
a
an
of Texas school
affected
application by
adjudicated
may
purchaser
making
Office
Land Office.
Land General
the Commissioner
party.
a
cases,
[Ed. Note.—For other
see Public
Dig.
Lands,
Dig.
544-551;
cases,
§
Gent.
Dec.
§§
see Public
[Ed.
other
Note.—For
544-551;
Dig.
Lands,
Dig.
173.*]
§
Dec.
§§
Cent.
173.*]
8.Pleading
(§ 356*)
Amendment-
—Trial
Right
(§
to Make.
173*)
to Pur
2.
Lands
Public
—Award
— Adjudication
county
chaser-Validity
rule
Under district and
courts
—Juris
provides
(67
xxii),
when ex-
diction.
ceptions
decided,
presented
pub-
sales
leave
relating
Laws
c.
granted
give
lands,
to file an
does not
lic school
Court exclusive
consisting
sepa-
jurisdiction
pro- amendment
a
one instrument
previous pleadings
adjudge
ceeding
a
rate from
a
of an award to
Amendment,”
trespass
try
pro- “Tidal
a
purchaser,
filed to
title or
previous pleading
ceeding
quiet
cure
in a
defect
result-
title in the district court
ruling
proper remedy.
from an adverse
is not a trial amend-
ment, though
stricken.
denominated,
properly
and is
cases,
see Public
other
[Ed. Note.—E'or
Dig.
Lands,
173.*]
§
Dec.
cases,
Pleading,
[Ed. Note.—For other
see
Try
Trespass
33*)
(§
Cross-Ac
3.
Title
—
Dig.
1111-1119;
Dig.
356.*]
Cent.
Dec.
§§
§
Pleading—Sufficiency.
tion —
Sayles’
art.
Ann. Civ. St.
Under
Rehearing.
On
petition
5, providing
that
allege
subd.
(§ 6*)
9.
Limitation
Actions
op-
trespass
try
title must
—Retroac
Application
tive
Re
Statute —Suits
posing party
possession, an answer
withholds
lating
to Public
Lands.
pos-
alleges
plaintiff nor
no ouster
requiring
Laws
c.
suits to enforce
him insufficient as
cross-action.
session
purchase public
land
Trespass
cases,
other
see
[Ed. Note.—For
within one
after
the act
took effect or
Dig.
Try Title,
§ 33.*]
Dec.
subsequent awards, applies
to an award
—
—
Pleading
Objections
403*)
(§
Refer
passage
4.
of lands made before
of the act.
Pleading.
ence to Adverse
eases,
[Ed. Note.—For other
see Limitation
sufficiency
passing
In
pleading^
Actions,
Dig.
§
Dec.
6.*]
allegations
adversary’s pleadings may
(§ 173*)
10. Public Lands
Lands—
—School
be considered.
Pleading
Sufficiency.
—
cases,
Pleading,
[Ed.
other
see
Note.—For
trespass
try
involving public
In
title
1343-1347;
Dig.
Dig.
§ 403.*]
Cent.
Dec.
§§
pur-
plaintiff
school
awarded to
Pleading
—
Objections
—403*)
chase,
(§
Cross-
answer
nature of
quiet
against plaintiff’s
to Adverse
Plead
title
Petition —Reference
claim was insuffi-
ings.
peti-
cient where the lands as described in the
attempted
tracts,
Even on nonsuit
nonsuit
tion and in the answer were different
adopted
to show that
plaintiff,
though
discrepancy
so
as
defendant has
alle-
mere clerical
er-
gations
he is
plaintiff’s pleadings
ror.
thereon,
relying
will be
eases,
[Ed. Note.—For
Public
see
determine
of defend-
looked to to
Lands,
Dig.
Dec.
§ 173.*]
cross-petition.
ant’s
Donley
Appeal
Court,
District
Coun-
Pleading,
see
[Ed. Note.—For
Browning, Judge.
;
Dig.
ty
403.*]"
J. N.
Dec.
§
Trespass
B. Williams
title
J.
(§ 173*)
6. Public
Lands
Lands—
—School
Pleading.
Barnes,
Action —
L.
revived
Williams’
C.
involving
school
Judgment
death.
widow
others
purchaser
claimed
un-
lands
der
..which
appeals.
plaintiffs,
and defendant
Af-
by the Commissioner of the
an award
Gen-
Office,
firmed.
award was sufficient
eral
Dig. Key
Rep’r
Dig.
topic
No.
&
Series
Indexes
Am.
*For other cases see same
and section NUMBERin Dec.
*2
BARNES WILLIAMS’ ADM’R
y.
WMte,
plication
to,
duly
for
A. T.
and
sworn
Cole and H. B.
form of
Kimbrough,
Madden,
H. C.
and
lant.
Pipkin,
&
was on
filed
the coun
Trulove
said
with
date
ty
appellees.
Donley county
required
O’Neal,
clerk
and
for
of
J. H.
law;
that he
with said clerk his
also filed
obligation
GRAHAM,
purchase price
has twice be-
case
C. J. This
for
0f
9/40
Appeals
land,
deposited
wit, $312,
said
fore been before the courts of Civil
of
and
with
to
127,
(44
App.
applied
298,
$8,
and
Tex.
S.
him the
of
Civ.
99 W.
sum
Supreme payment
432),
our
111 W.
and once before
for said
Defendant further
S.
land.
89),
says
(102
444,
date, wit,
to which
119 W.
the 30th
same
opinions
gation
sary
history
day
July, 1902,
of the liti-
we refer for a
of
filed
said
also
with
he
purchase survey
for
be neces-
his
and
clerk
No.
data
understanding
Ry. Co.,
54,
C-3,
for a full
of the
block
R.
E. L. &
as ad
R.
parties
arising
allega-
section,
on issues
ditional
land to
his said home
opinion.
being
within
tions
discussed
five miles of his
radius of
us,
section,
in so far as
The record before
it bears said home
same
and at the
time filed
discussed,
upon
questions
obligation
hereinafter
with said clerk his
to the state
perfecting
appeal
purchase price thereof,
That
shows:
since
for
89/4o
reported
432,
wit,
deposited
$312,
in 111
J. B. Williams to
the sum
of
and
with
intestate,
applied
clerk
on October 17 and said
the sum
died
of
to be
$8
1910,
wife,
payment
therefor;
surviving
as well as his the first
his
that both of
dry
proper
legal representatives,
said
grazing, and, having
tracts of land
heirs and
were classified
previously
legal
manner, appeared
form
in this
making
praised
applications
pleadings
purchase ap
said
cause
of the
filed herein on December
said amended
filed amended
lieu
petition
per
Williams,
applica
acre,
J. B.
at
said
$1
1, 1904,
obligations just
tions and
said
described was
alleging
pleadings,
duly
clerk
transmitted and filed in the
prosecute
on, wit,
day
the 1st
suit,
ordinary
August, 1902,
payment
this
action
form of
an of
and said first
duly
deposited
title. That on Oc
forwarded and
with the
18, 1910,
on, wit, August 1,
tober
ed
Barnes filed an
L. C.
amend State Treasurer
answer,
replied separately
says that, notwithstanding
which he
to Defendant
pleadings
several
filed
fact that' said land
described
above
was at
making
filing
ap
17 and
October
the time of
plication
of his said
upon
each
the facts
the
said
answers he
amended
for sale
market
to actual
tending
invalidity
price mentioned,
to show
of settlers at the
the Commis
also the
facts- on sioner
the General
Land Officearbitrari
recovery
substantially ly
accept
applications
relied
declined to
for
said
rejected same;
the same form and substance
leged
he had al
and the State Treasurer re
money
those facts in an answer
this turned to defendant
said sum of
January 2, 1908;
portion
deposited
said
him
cause
the first
pleadings
January
payment
filed on
said land. Defendant further
reading
answer,
special
filing
as follows:
avers that
his
“Defendant
to and since the
be, says
applications
said
need
the two
tracts
said land
public
continuously
upon
land in
resided
and is now
upon
land,
residing
good
school
his
section in
free
owned
the state of Tex
said home
as,
home,
settlers;
making
sale
to actual
faith
valuable
it his
and has
erected
improvements upon
follows,
land is
said
described as
said
to wit:
Survey
C-3,
$1,000;
things
No.
block
the sum of
complied
he has
in
certificate No.
Ry.
Co.,
survey
making
S38,
E. L. & R.
R.
No.
Ry.
law
said
applications
C-3,
land,
No.
block
certificate
the said
D.
P.
tendering
Donley
payment
Co.,
state,
both tracts
situated
the first
county.
unpaid
says
executing obligations
pur
Defendant
at
and
chase
the time
price.
applications
pur-
He has also
the
ehasé
land,
on,
settling upon
wit,
land,
said
said
which was
the law
re
siding
home,
good
days
January,
thereon,
making
faith
and 14th
12th
not
part
he was
it his
any
land,
said
an actual
and was and is
to an
settler
entitled
prays
thereof,
ever
nor has he
thereto. Wherefore defendant
he have
settled
any
part thereof,
for said
and
said
resided
for cost
good
making
suit,
equitable
faith
thereon
relief.”
thereof,
part
Replying
his home. Defendant
further
day
on,
alleges
wit,
copied,
30th
each
above
filed a
containing,
July,
petition,
among
pur supplemental
he filed his
oth-
survey
following:
C-3,
things,
“(1)
48 in block
chase
No.
D.
er
Plaintiffs de-
& P.
having prior
Co.,
home,
Ry.
as a
thereto
matter
to all the affirmative
mur
in
contained
good
making
pleadings
generally,
land in
said
faith
of the defendant
settled
it
home,
making
say
time of
was at
that the same are
application residing
good
plaintiffs’
his said
thereon
constitute
defense
suit
home;
making
ap
faith and
to constitute
cause of action
SOUTHWESTERN REPORTER
judg-
(1)
plaintiffs pray
p.
them,
Has
and of this
Act
relied
specially
pellees
(2)
ex-
sustain
ment of the court.
Plaintiffs
the action
cept
any application
wherein defend-
to this ease under the
to all of said
attempts
up
the title to the
record?
ant
to set
*3
(2)
plead
application
the
If
act
this
said
has an
and to
over
record,
portion
appears
that
under the
was that
because it
therefrom
against appellant’s
pleas seeking
pleading
relief
first filed
this cause
said
affirmative
brought
recovery
January 2, 1906,
land on
and
forward
the
and- for
by
amendments,
in his
and all barred
as hereinbefore
herein are each
involved
several.
copied,
allegations,
year
in such
sufficient in its
either
the
of one
statute
limitations
try title,
provided,
this
a cross-action of
or
cases
made
judgment
pray
said remove cloud from title?
of the court” —which
For,
exceptions
pur-
by
if sufficient as a
for
the
overruled
either
court
pose,
proceeded
application
and the act of 1905 has an
the trial
its merits
with.
this
the
in ex-
appellees
court below erred
After
had
their evidence
closed
cluding
tending
by appellant
begun
appellant
the evidence
in-
offered
in chief
troduction of his
the
the
prove
invalidity
the
of the Wil-
evidence,
the
and after
title; while,
liams
application
no
if the
of 1905 has
of-
trial court
excluded certain evidence
record,
cause,
prove
tending
to this
under
the
the
fered
invalid, appellant,
error
the trial court to exclude
award to Williams
evidence,
pleading
it was admissible under
the
the
on
consent of
filed
appellant’s plea
guilty.
1910,
19,
styled,
of not
Trial
“Defendant’s
October
Amendment,”
appel- We are of the
that
act of
the
case
in which said
enlarged
no
under
had for-
lant
merly
on the
which
record,
January
1906,
the
2,
for the reason that
record
him on
claiming
brought
shows that
right
sy,
several amend-
forward
his
buy
or
lease
lands
controver-
ments so as to
attack
anything
ground
because of
him Wil-
done
or
Williams title on the additional
liams,
operative,
since the act
became
land
awarded Williams was not on
basing
rights,
may
any
such
all
he
for sale
time Williams
market
at the
application,
have in and to the
award was
fact
actually
things resulting
specifically alleged
did all
in a
him,
made to
purchase by him the
the state
from
Williams title
title,
constituted
cloud
nearly
operative;
years
three
the act became
before
is,
his claiAn
land
bases
cancellation of the award to
purchase
an actual
the
the
thereby,
created
which
1002, nearly
years
three
state
act became
trial amendment was
the court on
said
motion of
stricken
operative.
on October
The act
consideration is as fol-
held
naught.
lows:
On October
the trial below
persons
jury
“Section 1. That
was closed before
the district court
hereafter
right
purchase
Donley
resulting
peremptory
or lease
county,
in a
of
instruction
any public
lands,
any lands
school
or
and,
free
plaintiffs,
be-
verdict
belonging
University, or
to the State
ing
returned,
was rendered
asylums,
have been here-
accordingly.
of the state
which
thereon
may
or
or
tofore
which
hereafter sold
urges
assign-
Appellant
in this court four
any
person
any provi-
leased
error;
the first two
based
ments
authorizing
or
sion of the law
the sale
excluding
ruling
trial court
any
bring
lands,
shall
lease of
of said
tending
evidence offered
within
after
therefor
n
suit
Williams, appellees’
prove
ancestor,
goes
effect,
after
date
into
time,
the land
either before of after
at
was awarded
lease,
such
if such award
award of
is
sale or
him, occupied
taking
act,
effect of this
after
assignment being
controversy, the
third
thereafter.
on the fact
held
If
2.
no suit
been instituted
“Sec.
appellant’s pleadings filed
on Jan-
any person claiming
copied above,
uary 2,
period
said lands within the
in
lease
prevent
as a cross-action to
statute of
act,
first
of this
time limited
it
section
provided
p. 35,
limitations
barring
for
by
Act
re-
shall
that all
be conclusive evidence
recovery
appellant,
quirements of the law with
assignment being
reference
based on the action
fourth
of such lands have been com-
sale
lease
striking
trial court in
refus-
provided
nothing
plied with;
in this
to consider
hereinbe-
(affect)
act shall be construed
state
effect
to and
fore referred
“Defendant’s
proceeding
Amendment,”
action or
Texas
Trial
and filed on October
may
respect
it in
that
of
1910.
foregoing
lands.”
From the
statement
will be
controlling questions
An
of the Session Acts of
seen that
involved
pass
appeal
shows
the above law did not
on this
are:
WILLIAMS’ ADM’R
BABEES v.
Erp
clause;
approved
nullity,
emergency
that it was
but it is also
shown
1905;
at which
Till-
session
case that
March
1905;
April 15,
passed adjourned on
recover the
man and on
land from
plied
he relied to
it was
opera-
respects
Erp (he having
com-
did not become
in all
and that it therefore
tive
regulating
July 14,
matters)
until
February
used
was made
1905
cision further shows that on March
after the act
From the
apply
operative,
a bar
de-
think it cannot be held
had become
except
persons
any person
limitation to
cross-action,
claim or claims
for
in which he
Tillman
those who
a
base their
time
filed a
op-
Erp’s title;
the law
became
arose
attacked
it,
erative,
by
as we view
for the reason
held that
the attack could
success-
opera-
provisions,
fully
*4
in its
it is limited
was
its
made as the act of 1905
bar
a com-
plete
notwithstanding
thereto,
Erp
are
a bar
to those
tion as
limitation
who
using
remedy
prevented
acquired
for-
therein
merly
no title
a matter
law when
of
persons
existing
who -base their
the award was made to
not
him. We do
right
purchase
case,
any
claim to a
on acts done
or lease
find in
nor in
which
other to
authority
called,
after
law become our
them
the
has been
attention
nothing
operative,
proposition
lan-
we find
of
the
the
that the
1905 has
warranting
any application
ord,
guage of the law
the contention
to this case under
rec-
the
applied
authority
prop-
a bar
limita-
it should
that
tion
but that case
the
actually
persons
appel-
that,
who claim that
osition
if the facts contained
acquired
purchased
true,
or
from the state before
leased
lant’s cross-action be
no
Williams
operative.
right
controversy
law
act most
the
clearly
became
The
or title
the lands
person
warrants a
whose
law
arose ill
a result
this suit as
of the award made to
opera-
subject
either before or after the
tive
whether his
became
him in
occupancy
upon
and the same was
adversary,
attacking
the claim of his
and settlement
Barnes
went
adversary’s
application
award
was
and made
the land
operative, purchase
before or after
provided
law became
the
and that as
result of
the
respects complied
acts,
sufficient in
attack be
form
said
the
if he in all
year
acquired
law,
right
within
substance and made
after
to the title and
possession
operative,
law
the award
became
of
Williams.
adversary
prior
taking
to the
ef-
was made
When considered
ance of the
connection with the bal-
act,
think,
of the
fect
the award to his
and within one
for it to
order
adversary,
one,
if the award have
to a case like this
portion
say,
was made after the law became effective.
section 1
of
would have to
diligent search,
persons claiming
substance,
After
“All
we have found
in
heretofore
to have
question
purchased
leased,
right
instance wherein
now
dis-
under
or
or the
purchase
lease,” etc.,
cussion has
been before
courts of this to hereafter
or
instead
state,
compelled
saying
does,
per-
and we
are
therefore
rest of
it
“That
hereafter all
claiming
purchase
our conclusions
used
sons
or lease.”
words,
many
itself. We
aware
cas- In other
we think
act should be
were some
appellate
just
be,
es have been
before our
as it would
of
courts
construed
the words so
as
right
provisions
ap-
transposed
which the
of this law
as to make it read
plied,
persons
attempted
and resulted in a bar of an
“That all
follows:
adversary,
lease,”
attack
an award made to an
to hereafter
etc.—
but
each
ease
is made to
we so construe it.
attempted purchase
[1,
question
2]
lease
is raised in this
enforced,
by appellees
power
or lease
to be
but
held bar-
as to
of
tribunal
red,
pass
had occurred since
law
be- to
1905
operative,
came
the attack was to Williams in
to which the Commis
made more than 12 months after
be- sioner'
the General Land
of the
state
operative
party,
came
er
than 12
and more
months aft-
Texas
not
and whether as
purchase
adversary.
lease
result of
of
act of 1905 the
awarded
Erp
jurisdic
to the
man
The case
Till-
Texas has not exclusive
v.
(Sup.)
proceeding.
131 S. W.
cited
tion in such a
We are unable to
appears
brief,
agree
lees
most
to be one of
said conten
either of
thoroughly
tions,
taking
considered
to which
for the reason that
cases
called,
our attention has been
and in which effect of
act of 1905 our
had in
courts
many
recognized
pf
litigants
the act in
construed,
cases
provi-\
validity
was held in that case
to test the
an award without the
pre-
sions of the act of
Tillman
Commissioner
the
General Land Officeof
Erp’s
attacking
cluded from
title.
Texas
That
State of
thereto
however,
(Boaz
Powell,
976;
shows that
the land had been
96 Tex.
S. W.
v.
69
Erp
purchaser
shortly
Wright,
1053;
awarded to
as a
be- Jones v.
84 W.
passed,
Wright,
1010;
fore the act of
1905
v.
v.
and more Jones
92 S. W.
Barnes
opera-
and,
than
Williams,
89);
three months before it
119
became
tive,
adjudicated
many
under circumstances while
cases show in
in
validity
decisions of
our courts showed the award stances that the
of an award made
SOUTHWESTERN
the
trict court
the issue of the
lant went
as well
plication
to
court also
of the General
then before
Williams.
out
been
liams,
date of said
appellant
that
ther
entitle
preme
reversing
such
ed
risdiction
the
had
appellant
eral Land Office
made
district
are
Court
be
Court
1905
aware
might
the state of Texas
Court in
through
our conclusion
119 S. W.
a result of the act
that
to,
title in the district
proper pleadings
said decisions
missioner of the General
as that statement was
disposition
reason
the
ment made
or since the
applied prior thereto,
Supreme Court,
litigated
Erp
except by
as
grounds
alleged
land. We
set
be tested
effect that
question
act
the court
made to Williams
of
proceedings
effect.
was not referred
or a
supposed
in
had exclusive
Court
we
him recover
of
why
as the
court,
up
the
of 1905
susceptible
went
that
in the
could not
the
Tillman,
showed the date
The record
must
proceeding
of that
the
it
in our district
Barnes’
whether
such a rule should
on which
of an award made
validity
award, and that it was before
taking
try
would
thereto
the Commissioner
the law such
remanding
of the General
existence
indicating
thought
decision,
should
therefore
that
power
validity
Justice
upon
purchaser
or the state
nor the
assume,
the
inference
Erp
decision
the award
as
be assumed
above referred
action of
have so
effect
title and to
land and
because
such
of that
courts of
or because
find
a court
original jurisdiction in
the land or
or not
be' maintained
Office,
found
the record
we think that
be
Case should be
proof,
warranted,
the
and we see
could
that
of
try
hold
the cause
though
nothing
questions
courts without
the Williams title
thereof,
the Commissioner
Land Office
issues
mandamus
at
has been
of our
when was
binding
relief
on which
construction,
the
said,
such matters
in 102 Tex.
the act of
award to
necessary
of Texas
trespass
having
the court
ease as it
Land
least,
not be
save
a
manner
showed with-
had
this state
the
either before
that
the
it,
well as the
of
statute
party
enter
cloud from
the
involved— for
dispose
instead
attempted
sought
in.
including
to,
of
the
no sound
properly pleaded
claim
Supreme
Supreme
Supreme before our courts arose
force of
can now
actually
a state-
sustains
the
against Ellis,
neither
litigat-
in the made
act
appel- statutory
tested
*5
Judge
there-
being Railway
as to
given
could
Com-
Gen-
Wil-
case
fur-
had
dis-
was
444,
Su-
the
ju-
of
as be looked to and
of where
or Hoodless. v.
of W.
a sion 5 thereof
Having
jurisdiction
was
to
session of
legations
of
der
tion of
appellant,
consideration was
the
tions
alone,
entitle him to
ed
ed nonsuit
W.
testing
whole
the
cases
the
involved, however,
plaintiff taking
427;
suit,
ally
posing party
and withholds
ises.
Article
the
S. W. 421.
ouster of
essary allegation
any allegation
utes
pearing
proof.
cient as a
originally
awarding
land,
[5] Even
[4] Most of the
try title,
1905 has no
allegations
try title,
1056;
appellant’s pleading
sufficiency
pleadings
holdings
hereinbefore
sufficiency
relief,
held that
must be
24
Short v.
in
We
show
that
than
defendant has so referred to or
nor
to warrant or
the
reached
in the
possession
the
appellees’ pleading,
S. W. 967.
Co. v.
record,
in that
herein, upon proper pleading
cross-action of
in
Free Robert
are of
will be looked
appellant by appellees
by plaintiff,
provides
statutory
in
sufficiency
in
Where
those who
such
such
pleadings
Willis
Winter,
raised
entered
of
hold that
of
of
Sayles’
cases of a
of
passing
parties
provides,
v.
Hepburn,
that no
cause,
sufficient within
connection
the
Anderson,
proceed
as a cross-action of
January 2, 1906,
that the district court
fact
either
our
defendant’s cross-action
cases our
adjudicated
considered as a
copied
allegations
attempting
and is
no
allegations
v.
try title,
possession by appellees.
therein,
it
relying
conclusion
Because
possession
cross-action
80
Lockett,
Annotated Civil Stat
courts
we will now consider
cross-action has been
question
of
appellees,
of
on the
it
dispose
allegation
would
support
party
trespass
thereon. Girard
of
requisites
plaintiff’s
the
Tex.
Burgess
nonsuit
89 Tex.
as a result
effect that
copied
the
would
76
possession
appellant’s
insufficient as
substance,
to this case un
courts
thereon
pleading
show
and in
than those
neither the
in
adversary
pleadings
appeared
cases in which
in a cross-ac
'Office competent as a was not first law and as pellees of the by plead title lief, ket or vest however, does further lant’s title judgment removing alleged, sufficient, which, lief on for the lands could not be appellees not been recovered could not guilty, means of title, It will be observed that tion ter tained Tex. the nature granted specific could avail himself as for uitable. award to of not that otherwise cause alleged, cient to warrant also affirmative tile fendant to case was suit, facts as tended to show the ice or cross-bill had sued Free on. removal [7] Even if the Commissioner defendants terms of the we mentioned foreign purchaser, It nor does he and, Justice specially of action guilty everything alleged application if and their ancestor and hand, consist appearance, terms appellant think the matters being such relief on makes in law coupled Whereupon plaintiffs removing of a cloud from true, could is not restricted to as proper prayer, appealed. take which the defendant appellees it he introduce under the court any right law take the one who has harassing consideration, may proceed unless enjoined Brown, state, uses we granted pray proof. issuance of legally able to would as application nothing it follows canceling cross-recovery, contended in this living upon as it would be special relief, embrace matters sued ancestor be held as prayer, in think, of the order to against appellees, law, and law that in accordance if a cloud from of as a foreign and then or the cloud from or title against appellees. specific declining proven entitle proven, defendants Short v. on, unless the award to language: a cancellation of the their ancestor as his well discussing *7 appellant land off of the mar proposed purchaser without the allege proposed purchase Williams; and as still, if that, and then for the prayer, further cross-action, obtain defense, a want Judgments, terms the land when himself within him where, title. He judgments had as such General award to take the to sustain legal equitable prayed necessary Hepburn, in his took on the facts such as he the plea vesting with may acceptance to this re- he “The did not should be allow therefore void, suit, case that awardee, purchase relief, pray relief suing as well alleged ment,” prayed other.” view of another a non- did not of not if sus- appel- which plead- file facts, Land ques- does, suffi- page serv- was awarded mat- Justice Willie him that Tex. .the and he ap- the with the law so far as de- re- eq- in or went to on or the cause had been called for trial. ion, ings, show that the award when ment of the court below the er, port lant insufficient liams as he thinks court erred applied holding limitation, appellant showing cloud plies cient in his pleading, before the would not be that, tion case, any ing Haynes, ing ty, fice. Hazelwood v. “Defendant’s same land was the fact al below S. W. as if an award had legal applicant ject On December It follows proper 08] Land Office reversed striking W. the evidence offered from adverse exceptions from his cause remanded for defect 115 S. county filed Civ. amendment, even if the the matters only We are upon it, made, had been from title did xxii), and which to this deprive prevent occupancy by the cross-action amendment filed at App. not abuse its open and Tillman v. trial, W. sale was as to from what we and remanded invalidity pleading, courts, and for said errors stricken out was not having performed the Commissionerof the Gener and he Trial rejected affected January 2, 1906, being On so ordered. holding filed first on (Pohle or demurrers appellant’s pleadings case; him of the speaking through as a cross-action appellant’s pleading, filed, trial, however, “Defendant’s government him, as it was not and cancel the award remedy, Rehearing. the case his evidence will settlement 71 S. running Amendment,” he also erred ruling Rogan, urge of 1905 should be allowed been made to that he also erred to Williams was v. it would his and which it still remained sub Barnes or of the award to will be reversed by appellant not been mentioned construed discretionary power Robertson, in a to W. under rule 27 proffered purchase have Briggs Key, as and the further it and respects legal rights of the trial court him, this cause January 2, 1906, required of the statute Erp, 95 Tex. 43); of the district many thereto, act, Trial Amend- written when Barnes urged Contreras his proper v. even after by appel- tended the writ- Land Of as it legal complete cross-ac- proceed- will 102 Tex. support. that the reasons exclud- him to result- in fact S. W. judg- Chief hold- opin- time, suffi- flow void Wil- sup- him, cure this say ap- du (67 30 ADM’R BARNES v. WILLIAMS’ to that act became ferent lug lands made the statute this case. January 2, 1906, opinion, evidence tendered for more than a to the fact had awarded the land language: correspondents for the first remedy sought.” those whose lee’s prior lee’s for pellant operative against to show that Williams’ ing original our attention was not called to the suit in relator ment of the speaking through announced the ed in this remove cloud ion that More than a tution pellant 1905 such posing the different construction on that act of 1905 did not but failed to institute brought. supra, attention case of 409, case, chase the lands claimed fore, appellees. sued critical the facts Supreme Court, as ancestor, *8 prescribing were for concerned, motion for in so far as the to the act of 1905 the trial the act of 1905 fails to show that Wyerts lands than therein described relies Wyerts v. was sufficient as relator, examination of Act by appellees’ ancestor, disposing In case operative, An “Some the same applies to others time in this 1905, p. 35, in deference to the and described contract rights year elapsed pleadings, briefs, cannot claim, appeal proceeding is now before in this case we held that the understand the kind of are identical with the facts we the may court erred on case of pointed Justice Williams uses this by appellant prevent first And as Mrs. the General Land rehearing, those awarded to made questions Terrell et of this case and in page 35, apply had arisen before the time in which but we are took now be copied attack sales of school in we construe it and as in his said legal question time after the we assumed without Swan, interest this state title becoming those sued the lands claimed Wyerts are of said ease, sale and also effect. We think a cross-action suit after the act of which by appellant by now same. that the lands other and dif does a bar on which facts in that al., to whom the the which bar called us on Wyerts and 'bars the Wyerts or otherwise for the land in act, either act became and in dis application ever, which our plea, originally, operative, invalid. hold that of a clerical error excluding reinstate it is the insti the lands suit places apply provided cross-ac as evidence cross-ac persons, holding right Terrell, and in involv for tended appel appel Ry. there- opin mat how- Case constitutes the him. pur also lant suit our cross-action was a clerical ap ap by vey D. plications appellees pellant interest. and find lands sued for lands a R. R. would be inclined to state as a removing pleadings, describe tain such such, tire pellees’ be beclouded lant in his cross-action pleadings, to court of tion of the titled to' only property that ary er owns for struing as a title or as title, description tion, was at the time of the plete show We have examined home, For The motion remove view the trial below without his cross-action survey which is & P. by appellees think because of the No. of 1905 Co. lands and record the trial appellant’s shows we cross-action bar appellees’ altogether Ry. Co., must title, not through therefrom that purchase and sue Ry. equity quiet have reached the conclusion that or to made sued for and reasons No. bar is not that which said cloud. Under in an cross-action claimed tends of the lands claimed by warranted seeks beclouded, herein and for these reasons we hold survey 54, by they Co. court block appellees’ pleadings, by liberal construction by appellees; action to remove cloud from as additional the act cloud, for from title had been described therein. from those in which testimony appellees’ claim, rendered inadvertence misdescribed tends limitations strongly above lands, block survey for ordinary misdescribed, him the Commissioner C-3, did not err in in order for a rehearing as show that the invalid. Office hold set show any right but must also con- therein. lands he as if to show have stated, C-3, block trial D. thus statement up description No. claimed pleader’s below, any objection ap- 1905 became holding error, therein claims which tended to specifically requires & proceeding, of in the lands sued be sufficient as purchased E. show that property, P. below com- is insufficient attacking ap- C-3, is therefore fact, actions his cross-ac- intended to L. '& R. himself Such in, Ry. introduced appellant’s show transcript, block but as we alleges by especially excluding now hold while and title on different E. L. a result as well descrip- in said the en- in con- that a Co., plead- facts, Janu- what title C-3, sur- try en- R. 143 SOUTHWESTERN Appeal granted. judgment Fayette Court, hereto- reversal Coun- The District ty; Neighbors, Judge. is set aside B. G. fore this court rendered judgment now rendered is here Action Louisa Kennon and another affirming judgment against Henry trial court Miller From a and another. judgment defendants, appeal. ordered. for Affirmed. Raley, Lane, appellants. Jas. Brown appellees. al.† et et al. v. MILLER KENNON (Court Appeals An- Texas. Civil San FLY, Appellants, J. Louisa Kennon Rehearing Denied tonio. Jan. 1912. Raley, 14, 1912.) James title to 50 acres of ler instituted action Feb. Henry land, against Mil- (§ 102*) Newly 1. New Trial Discovered — appellees, Miller, R. which action Records. Evidence —Public Where, in defendant appellees five, an action to three, four, guilty, grantor paid on taxes testified that years and ten limitations. cause years prior suit, new the land for five jury, tried was ren- without newly granted not be discovered will evidence, though appellees. affi- show dered in favor davit that the of such records disclose that in tax conveyed Carr R. J. and John Dean years paid on all of taxes were Harris, at that land to Sam open as such records were accessible regarded trial, Kennon, at time of the and cannot be on No the husband of Louisa time vember newly discovered. 19, 1872, the recited consideration cases, Trial, [Ed. Note.—Eor other see New promissory ex note and a $191 cash Dig. Dig. 210-214; § Dec. §§ 102.*] Cent. That deed $35. Sam Harris ecuted was recorded (§ 105*) Newly 2. New Trial Discovebed — April, Harris 1874. Sam Evidence —Contradiction oe Witness. January 16, granted on A new trial will on died 1899, ground evidence, newly discovered widow, Harris, Har and Sam Lou merely goes such evidence contradiction only children, Harris, ris Prince of a witness. conveyed form an instrument cases, Trial, see [Ed. Note.—For New deed, Eason, Dig. Dig. 221-223; Eason M. 19, 1S99, and the to N. § 105.*] Dec. §§ Cent. conveyed latter two on December (§ 239*) 3. Vendor Purchaser —Bona — Equitable Reserva land Winkfield. The deed Eide Purchasers the the Easons was recorded on to John tion. February 9, absolute, secret deed to Where record and their deed to Winkfield was grantor equity retained in the not affect will grantee Jr., subsequent Harris, January 19, notice. the title on 1900. Sam ed and wife cases, conveyed [Ed. Note.—For other see Vendor and 6,' on November Dig. Dig. Purchaser, 239.*] 583-600; § §§ Cent. Dec. deed, Winkfield, by which was John land to February 18, On Decem 1902. on recorded (§ 44*) Computation 4. Adverse Possession — was sold under execu ber oe oe Title. Period —Chain county Fay- issued out of county of tion one of the transfers chain That from an officer title of a holder of land was styled M. Cockrill in a case ette John chaser, upon the execution a sale under will not break pur Winkfield, rand was the M. Cockrill three-year continuity running of the Janu and his deed recorded grantor a former statute of limitations endeavoring equity, appellees in the ary 12, to assert a secret Cockrill sold that the sale absence of was invalid. February 1, 1906, deed was record [Ed. see Note.—For Adverse February 24, 1906. The statement ed Dec.Dig. 226-231; Possession, Cent.Dig. 44.*] §§ § paid they shows the taxes were (§ 78*) Computa 5. Adverse Possession — up due Cockrill became oe Title. tion oe Period —Chain August 27, 1910, insti when this suit was is sufficient to form a inheritance Title of title which sustain a link in a chain plea will peaceable, tuted, ad and that and *9 statute of limitations. uninterrupted possession verse, cases, see [Ed. Note.—For Adverse cultivating time, using and Dig. Possession, § 78.*] Dec. pos Winkfield adverse same. John 44*) Computa (§ Actions Limitation oe — land from 1900 session Title. oe tion oe Period —Chain Cockrill, plaintiff using cul in an action sold to land was Where the tivating deed, previously an absolute ap- he, Cockrill, equity upon recovery the deed was such an action be in can possession pellees adverse reality mortgage, and, years than 10 before this suit must be commenced within four more for instituted. repudiation years the time February Winkfield On discovery grantee wrong- trust gave a of trust on the land to secure deed conveyed, fully is no there such a re- notes, payment convey- covery ance two Louisa Ken- knew the grantee assertion of title got it. soon as John Winkfield non knew As conveyed person than whom more the 10 Easons, conveyed deed from the information bringing years action. Louisa Kennon that he see Limitation Note.—For [Ed. bought Actions, Dig. it. Louisa obtained deed 44.*] § Dec. Key Dig. Rep’r topic Dig. No. Series & Indexes same and section & Am. cases see NUMBER Dec. *For other by Supreme denied Court. error † ofWrit