17 Tex. 292 | Tex. | 1856
This was a suit for land in Peters’ Colony, and the controversy was on the priority of settlement, in which the main question was whether the appellee, who was the plaintiff in the Court below, had or not abandoned his first settlement, on which he claimed the right of preference. The law on the question seems to have been correctly given by the Court, under the decisions of this Court in Overton v. Crockett, (12 Tex. R. 509,) and the case of Patton v. Phebe Evans, guardian, decided at the last Term at Austin, and not yet reported, (15 Tex. R. 363;) and, on the evidence, the jury found a verdict for plaintiff, negativing the fact of abandonment.
There was an error in the charge, if applied to evidence offered by the defendant, but not when applied to the evidence offered by the plaintiff, as it was in this case. The plaintiff offered to prove his own declarations and conversations when about leaving his home, to prove that he intended to return, and to repel the presumption, arising from his leaving, that it was an abandonment of his settlement, which was properly overruled by the Court. But had the declarations of an intention to abandon been offered against him by the defendant, it would have been certainly competent testimony. The defendant offered no such evidence, and he could not avail himself, by his bill of exceptions to the charge of the Court on rejecting the evidence offered by the plaintiff.
The propriety of overruling the motion to set aside the verdict of the jury, requires more consideration. It presents the question whether the verdict is sustained by the evidence. The evidence, as presented by the statement of facts outside of the documents, is meager and indefinite. The documents show that the appellant and appellee both procured their certificates from the Commissioner Ward on the same day, under the Act of
The counsel of the parties not agreeing on the statement of facts, it was made by the Judge, and made up of sketches of the evidence only. There is no doubt that to the Judge who had heard the evidence, these sketches were well understood, but to this Court, without that advantage, we are fearful that it is not certain that we do fully understand the facts as proven.
It is, however, evident that the question in this controversy was on the priority of settlement, out of which another would arise, whether the priority had not been lost, by an abandonment thereof, or forfeited by a non-compliance with the requisitions of the statute of 1850, giving preference to the oldest settler. The 3rd Section of the Act above referred to (Hart. Dig. Art. 2231,) provides “that when two or more colonists have settled on one and the same section, half section or fraction of a section, the oldest settler shall be entitled to the preference.” The 6th Section of the same Act (Art. 2234, Hart. Dig.) provides that each settler shall be confined to the section, half section, or fraction of a section, as heretofore surveyed, if the field notes can be obtained. But if such field notes cannot be obtained, the County or District Surveyor of each County or District may be required to survey the section, half section or fraction of a section for such settler ; and the surveyor, in such case, shall be governed by the laws defining the duties of County Surveyors.” The 10th Section provides, “ that in <* the event the field notes of the surveys cannot be obtained “ by the first day of April in the year eighteen hundred and
It is perhaps necessary to state, that the lands embraced in the Colonial Contract had been surveyed by the contractors, but there being some doubt whether the settlers could, in every case, furnish the Commissioner evidence of the surveys, so made by the contractors, they were given until the first day of April, 1850, to furnish these field notes of the Company’s survey, after which time they were required to have the land claimed by them surveyed by the County or District Surveyor. Both the claimants appeared before the Commissioner subsequent to the expiration of the time given to furnish this survey. The certificates both required a survey to identify the land claimed, and, as we have seen, Stover never had a survey at all, and it seems that after the passage of the Act of 1852, he claimed by filing his certificate with the agent of ,the Company appointed under the Act of 1852.
Had Garvin’s survey been returned to the General Land Office, by the surveyor, he would have been entitled to demand a patent. But it was not returned, and the question is, shall he lose that advantage over his adversary, on account of the failure of the surveyor to make the return of his survey. Stover did nothing after obtaining his certificate, until after the passage of the Act of 1852. He then preferred his claim, depending upon the Company’s survey to identify it.
The 4th Section of the Act to which we have last referred, is believed to be the only one that has any relation to the case before us. It is as follows : That it shall be the duty of each and every colonist, before the fourth day of August, 1852, to
The only question that we believe to be properly before us for revision is, was the evidence sufficient to support the verdict of the jury ? The Court below decided that it was, and overruled the motion for a new trial, and in so ruling we believe that it erred.
There is no question but the appellee was the prior occupant, but we believe that he lost his possession by abandon
Reversed and remanded.