Allen v. Frost

• Decision Date: 17 January 1903
• Citation: 71 S.W. 767
• Parties: ALLEN v. FROST.
• Court: Texas Court of Appeals

71 S.W. 767

ALLEN v. FROST.

Court of Civil Appeals of Texas.

January 17, 1903.

Appeal from district court, Stonewall county; P. D. Sanders, Judge.

Action by B. F. Allen against Dade Frost. Judgment for defendant. Plaintiff appeals. Reversed.

Woodruff & Hughes, for appellant. H. G. McConnell, for appellee.

SPEER, J.

B. F. Allen, the appellant, filed this suit originally in the district court of Stonewall county, in action of trespass to try title, to recover from Dade Frost, the appellee, section No. 342, in block D, situated in said county, and located by virtue of certificate No. 29/2153, issued to the Houston & Texas Central Railway Company. Appellant applied to purchase the land in controversy, which is state school land, as additional land, making his application therefor on the 20th day of January, 1900, which application was filed in the general land office of the state on the 26th day of the same month. On March 20th following the land was duly awarded him by the commissioner of the general land office, and all payments of principal and interest due the state under said application and award have been made. The appellee defended by pleading the general issue and plea of not guilty. He made an application to purchase the land in controversy as an actual settler on November 7, 1899, and the same was filed in the general land office on the 11th day of said month. The trial was had before a jury upon special issues submitted by the court, and a judgment entered for the appellee, Frost; hence this appeal.

Appellant's first complaint is of the following definition of "actual settler" given by the court in its charge to the jury, viz.: "An actual settler on school land is one who has in good faith established his residence thereon for the purpose of making his home thereon. It is not necessary for him to have his wife or family on the land at the very time he makes such settlement, if in fact he has himself, in good faith, established his residence upon the land, with the bona fide purpose and intention of making his home upon the land." We are of opinion the charge is subject to the criticism that it is upon the weight of the evidence, and therefore erroneous. As an abstract proposition of law it is doubtless correct, but, in determining the all important question whether or not the appellee had in good faith established his residence upon the land with the bona fide purpose of making his home there, the absence of the wife or family is a pertinent circumstance for the jury's consideration, tending to a greater or less degree, according to the circumstances surrounding such absence, to disprove the bona fides of such settlement. The family's absence may be easily explained, and may have been in this case, yet the fact remains that it is for the jury, and not the court, to so say. Chesser v. Baughman (Tex. Civ. App.) 55 S. W. 132; Cordill v. Moore (Tex. Civ. App.) 43 S. W. 298; Borchers v. Mead (Tex. Civ. App.) 43 S. W. 300; Mayo v. Tudor's Heirs, 74 Tex. 471, 12 S. W. 117.

It appears that in answer to one of the interrogatories submitted to the jury they answered that appellee was not an actual settler upon the land described at the time he subscribed and swore to his application, on November 7, 1899, but from another answer to a further question propounded that he was an actual settler on the land at a later hour of that day. The evidence disclosed that appellee, when upon his way to the land for the purpose of making settlement upon it, turned aside to the county...