73 S.W. 970 | Tex. App. | 1903
The question presented on this appeal is whether a certificate of three years' continuous occupancy of State school land issued by the Commissioner of the General Land Office in accordance with the terms of Revised Statutes, article 4218j, will preclude inquiry as to whether such occupant was an actual settler at the time of his original application to purchase, and whether, if so, thereafter his right is forfeited by mere abandonment. The question arises under the following state of facts: The appellee applied to purchase *219 the State school section of land involved in this controversy on the 13th day of May, 1899, and the land was awarded to him by the Commissioner of the General Land Office on May 16, 1899, and on July 11, 1902, said Commissioner in due form issued certificate of appellee's continued occupancy for three years, as required by the article of the statute cited.
Appellant Lamkin became an actual settler upon said section and made due application, obligation and first payment as required by law, causing his application and obligation to be filed in the General Land Office on April 22, 1902, and an award to him being refused by the Commissioner on account of the previous sale to appellee (there existing no other legal objection thereto,) appellant instituted this suit May 6, 1902, in trespass to try title. Upon the trial appellant offered evidence tending to show, among other things, that appellee was not an actual settler at the time of his application and award nor thereafter until a short time prior to the issuance of the certificate in May, 1902, which proof the court excluded because of the Commissioner's certificate. The court also, upon the facts stated that relate to appellee's title, peremptorily instructed the jury to return a verdict for him.
Appellee's purchase was under the act of 1895, as amended by the act of 1897, and the court's ruling, in so far as appellant sought to show that appellee's purchase had become forfeited by reason of an abandonment of the premises after such purchase, was correct, the Commissioner not having declared a forfeiture therefor. See O'Keefe v. McPherson, 25 Texas Civ. App. 313[
In the case of Logan v. Curry, 66 S.W. Rep., 81, we held, in effect, in an opinion by Justice Hunter, that the jurisdiction of the Commissioner of the General Land Office to pass upon the question of continued* occupancy did not arise where it was shown that the applicant to whom the award was made was not an actual settler at the time of the award to him; and hence that a certificate of the kind now under consideration would not prevent a subsequent actual settler and applicant from proving, in aid of his own right, that the original award was a nullity by reason of the nonsettlement of the person to whom the award was made. In this ruling, however, our Supreme Court in the same case (
It is accordingly ordered that the judgment be reversed and the cause remanded for a new trial in accord with the views herein expressed.
Reversed and remanded.