Horm v. Shamblin

57 Tex. 243 | Tex. | 1882

Watts, J. Com. App.

There is no allegation in the petition that the agreement between Horm and Mrs. Shamblin was not in writing, and it was not necessary to allege that it was in writing; the exception to the petition, on the ground that the agreement therein set up was in violation of the statute of frauds, is not well taken.

It is claimed by appellee that the agreement asserted by the petition is such as will not be enforced, because it is against public policy; and upon that ground the court correctly sustained the demurrer to the petition and dismissed the suit. The object and purpose of the pre-emption laws are to secure the settlement, improvement and cultivation of the public domain. It is true that no one who has a homestead is permitted to acquire land in this way. Gambrell v. Steele, decided at the last Tyler term.

As a prerequisite to obtaining a patent under the pre-emption laws, the party must occupy and improve the land for three years. But it does not appear to us that public policy would preclude a party who desired to obtain a homestead under these laws from making contracts with respect to a portion of the land, so as to enable such party to comply with the requisites of the law in settling upon and improving the land. According to the case made by appellant, Mrs. Shamblin was unable to comply with the requisites of the law in settling upon the land and having the same surveyed, and the field notes returned to the general land office. To enable her to do so, plaintiff furnished the material and constructed a house upon the land, enclosed the same with a proper fence, and broke some ten acres of land, and also paid the surveyor’s fees, upon an agreement with Mrs. Shamblin that for and in consideration of all these things she would convey to him eighty acres of the land, so soon as she obtained title thereto from the state, and that Gambrell purchased with full knowledge of this agreement. It was never intended that a party obtaining land as a pre-emptor should not be able to convey it at will; on the contrary, the law even provides that it may be transferred before the right has been perfected. We perceive no reason why such a contract as that set up in the petition should be considered as violative of public policy; it does not propose or require that any of the requisites of the pre-emption law shall be dispensed with; no fraud is by reason thereof to be perpetrated upon the state; but the contract does contemplate the actual occupancy, improvement and cultivation of the land by Mrs. Shamblin.

We are of the opinion that the court erred in sustaining the exceptions to the petition and dismissing the suit, for which the judgment ought to be reversed and the cause remanded.

BeVERSED AND REMANDED.

[Opinion delivered June 9, 1882.]