Barnes v. Patrick

• Decision Date: 10 April 1912
• Citation: Barnes v. Patrick, 146 S.W. 154, 105 Tex. 146 (Tex. 1912)
• Parties: BARNES v. PATRICK et al.
• Court: Texas Supreme Court

Page 154

146 S.W. 154

BARNES v.PATRICK et al.

Supreme Court of Texas.

April 10, 1912.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by J. B. Williams against L. C. Barnes, in which W. H. Patrick and others, administrator and heirs of J. B. Williams, were substituted as plaintiffs.On appeal the Court of Civil Appeals reversed a judgment for plaintiff, but, on rehearing, affirmed that judgment (143 S. W. 978), and defendant brings error.Reversed and remanded.

See, also, 44 Tex. Civ. App. 298, 99 S. W. 127;111 S. W. 432; 102 Tex. 444, 119 S. W. 89.

H. B. White and A. T. Cole, both of Clarendon, for plaintiff in error.Madden, Trulove & Kimbrough, of Amarillo, and J. H. O'Neall, of Clarendon, for defendants in error.

BROWN, C. J.

The defendant in error having filed an answer in this case, the application will be granted, and we will dispose of the case.The dates are not material.Therefore they will not be stated, except when necessary.

At some time prior to January, 1905, J. B. Williams, as an actual settler, applied to purchase, and the Commissioner of the General Land Office awarded to him, the two half sections of public free school land in controversy.At a date prior to January, 1905, L. C. Barnes actually settled upon and improved one of the half sections awarded to Williams, and applied to purchase it as a home, and also applied to purchase the other half section as additional land.Prior to January, 1905, Williams instituted suit against Barnes to recover possession of the two half sections of land, claiming them under the award of the Commissioner, and on the 4th day of January, 1905, Barnes filed an answer attacking the award made to Williams upon the ground that Williams had never settled upon the land as a home, Barnes claiming the right to buy the land under his application which had been rejected by the Commissioner.Williams died, and his administrator and heirs made themselves plaintiffs by an amended petition, in which they alleged the settlement of their father and all facts required to show that he was lawfully entitled to purchase the land, and, if true, would sustain the award.The answer of Barnes, if true, was sufficient to show that the award to Williams was void.The plaintiffs alleged that Barnes was in possession of and claiming the land sued for, describing it thus:

"First Tract: A half section survey of land, known and described as section No. 48, in block C — 3, located and surveyed for the benefit of the common school fund, under and by virtue of certificate No. 838, issued to the East Line & Red River Railway Company, as said half section survey of land is shown by the official map and plat of Donley county, Tex.

"Second Tract: One certain half section survey of land known and described as section 54, in block C — 3, located and surveyed for the benefit of the common school fund by virtue of certificate No. 5, granted to the Denison & Pacific Railway Company, as said section survey of land is shown by the official map of Donley county, Tex."

In his answer Barnes describes it as the land in controversy, repeating precisely the description that plaintiffs gave, denying plaintiffs' right to that land, and asserting his superior claim to it.

In the next paragraph of the answer Barnes alleges the facts of his settlement upon and application to purchase the land, describing each half section thus:

"SurveyNo. 48 in block C — 3, D. & P. Ry. Co. as a home having prior thereto settled upon said land in good faith making it his home, and was at the time of making his said application residing thereon, in good faith making it his home."

"SurveyNo. 54, block C — 3, E. L. & R. R Ry. Co. as additional land to his said home section, it being within a radius of five miles of his said home section."

We must consider the pleadings of both parties to determine the effect of the mistake in defendant's answer.The petition described each half section accurately, and alleged that Barnes was in possession.Barnes' answer described...