74 S.W. 921 | Tex. App. | 1903
The section of school land in controversy was patented to appellee, plaintiff below, as assignee of Andy Trevey, the original purchaser, February 24, 1902, a short time before the institution of this suit.
Andy Trevey, after proving up three years occupancy of his home section, applied to purchase the section in dispute as additional land the _____ day of June, 1900, and it was awarded to him _____ day of August, 1900. Appellant made his application to purchase it as an actual settler thereon _____ day of June, 1901, complying in all respects with the law and being an actual settler as claimed.
September 18, 1895, the Commissioner of the General Land Office issued a five-year lease to B.E. Wagner, which included the land in controversy. The proof showed the payment in advance by Wagner of the first year's rent but was silent as to whether or not any other payments had been made, or as to whether or not the lease had been canceled. So the court found, the record containing conclusions of law and fact, but no statement of facts.
The presumption that the Land Commissioner did his duty in awarding the land to Trevey and in issuing patent to appellee was not overcome by proof of the issuance of the lease to Wagner nearly five years before the land was awarded to Trevey, although the award was made within the time covered by the terms of the lease. The lease might have been forfeited or otherwise removed as an obstacle to the purchase, and if it was still in force, appellant could easily have made proof of the fact.
No sufficient excuse was shown for not offering such testimony on *384 the trial, and the court did not therefore err in refusing a new trial on this ground.
The judgment is therefore affirmed.
Affirmed.
It appears from the findings of fact that the land had been duly classified, appraised and placed on the market. It was therefore subject to sale when awarded to appellee's vendor, unless it was then under lease to some one opposed to the sale, which was not shown.
Finding no conflict between the rulings, we overrule the motion.
Overruled.
Writ of error refused. *385