Gibbons v. Hall

• Citation: 59 S.W. 814
• Parties: GIBBONS v. HALL et al.
• Decision Date: 12 December 1900
• Court: Court of Appeals of Texas

59 S.W. 814

GIBBONS v. HALL et al.

Court of Civil Appeals of Texas.

December 12, 1900.

Appeal from district court, San Saba county; M. D. Slator, Judge.

Action by Sarah Hall and husband against James E. Gibbons and another. Judgment for plaintiffs. Defendant James E. Gibbons appeals. Reformed and affirmed.

Leigh Burleson and Rector & Brown, for appellant. Allison & Waltors, for appellees.

FISHER, C. J.

This suit was instituted in the district court of San Saba county on the 15th day of January, 1900, by Sarah Hall, joined by her husband, D. C. Hall, against defendant W. H. Gibbons, in the usual form of trespass to try title to 640 acres of land in San Saba county, Tex., known as "State School Section No. 12" (certificate No. 384,392, issued to the Houston & Texas Central Railway Company); also to 320 acres of land in said county known as "State School Section No. 2" (certificate No. 76, issued to Brooks & Burleson); and praying for judgment for said lands, and for their writ of possession, and for general relief. On March 15, 1900, by their first amended original petition plaintiffs made James E. Gibbons a party defendant, suggesting his minority, and asking that a guardian ad litem be appointed. On April 19, 1900, plaintiffs filed their second amended original petition, alleging, in addition to the allegations contained in their former pleadings, that they had acquired the two tracts of land sued for by purchase from the state of Texas; that defendant James E. Gibbons was setting up some kind of claim to same by a pretended purchase from and under the state of Texas, by mesne conveyance from the original purchaser, D. C. Hall; that said James E. Gibbons was a minor under the age of 21 years; also setting up a homestead claim to 200 acres out of said school section No. 12, Houston & Texas Central Railway Company, describing said 200 acres so claimed as a homestead by metes and bounds, and alleging that they had occupied and claimed said 200 acres as a homestead ever since the 19th day of July, 1899, during which time they had no other homestead; and praying for judgment for all the land sued for, and in the alternative for so much of the land to which they might be found entitled, including the 200 acres claimed as a homestead, and for costs and for general relief. On April 18, 1900, defendant James E. Gibbons filed his first amended original answer, which contained a general demurrer, a general denial, a plea of not guilty, and a prayer for general relief, which said general demurrer was by the court overruled. A trial before a jury resulted in a verdict for plaintiffs Sarah Hall and D. C. Hall for the 200 acres claimed by them as a homestead, and in favor of the defendant James E. Gibbons for the balance of said tracts of land, which verdict was by the court received, and upon which judgment was rendered.

We find the following facts: On July 19, 1899, appellees D. C. and Sarah Hall were husband and wife, and on that day they went into possession of section 12, the land in controversy, which was at that time public school land, and, on July 20th, D. C. Hall, as an actual settler, made his application to purchase the survey, and on July 22d the land was awarded to him by the commissioner of the general land office. Hall in all respects complied with the law in reference to making the payments then required, and executing the obligations for the balance due. He and his family went into possession of the land as an actual settler at the time stated, and we find from the facts that, in contemplation of law, this actual settlement and possession continued up to the...