Logan v. Curry

• Decision Date: 21 December 1901
• Citation: 66 S.W. 81
• Parties: LOGAN v. CURRY et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

66 S.W. 81

LOGAN v. CURRY et al.¹

Court of Civil Appeals of Texas.

December 21, 1901.

Appeal from district court, Nolan county; W. R. Smith, Judge.

Actions by J. W. Curry and R. P. Arnold against W. C. Logan consolidated by consent. From judgments in favor of plaintiffs, defendant appeals. Affirmed.

Theodore Mack, Capps & Canty, and Beall & Beall, for appellant. E. N. Kirby, A. H. Kirby, and J. M. Wagstaff, for appellees.

HUNTER, J.

On the 9th day of November, 1900, J. W. Curry filed his suit against W. C. Logan for all of school section No. 38, block 20, T. & P. Ry. Co., Nolan county, and on the 7th day of February, 1901, R. P. Arnold filed suit against W. C. Logan for all of school section No. 50, same grantor, block, and county as that of section 38. On the 15th day of April, 1901, the appellant, as defendant in said causes, filed his answer in said cases by general demurrer, general denials, and plea of not guilty. By agreement of parties, the two suits were consolidated, and tried before the court upon the same testimony and statement of facts, resulting in a judgment for the plaintiffs on the 29th day of April. The court filed his conclusions of fact and of law in the consolidated case on the 29th of April. Appellant excepted to the judgment of the court in each case, gave notice of appeal, and on the 7th day of May filed statement of facts, and now brings said consolidated case to this court for revision.

The record discloses the following facts: H. C. Reid made an application in due and legal form to purchase section 38 as an actual settler thereon, and filed it in the general land office January 17, 1896, and an award of the section was made to him by the commissioner on February 21, 1896. All payments required of him were duly made up to the time of his sale. On October 13, 1897, he and his wife joined in a conveyance of this section to W. C. Logan, the appellant. This deed was duly recorded in Nolan county, where the section lay, and on January 20, 1899, was filed in the general land office. On March 30, 1900, appellant filed in the general land office his proofs of occupancy by Reid and himself for three years, and the commissioner issued to him, on that day and of that date, the certificate of such occupancy, as is provided by law. After this suit was filed, on, to wit, January 19, 1901, the commissioner issued and delivered a patent to said section to appellant, and this constitutes his title. Before the patent issued, however, J. W. Curry, one of the appellees, being an actual settler on the east half of section 48, on October 8, 1900, filed his application and obligation in due form to purchase section 38 as additional grazing land, and tendered the proper cash payment, which application was rejected by the commissioner because of the sale to Reid.

A question is made on the sufficiency of the evidence to prove that Curry was an actual settler on the east half of section 48, but we have concluded that it was sufficient to warrant the district court in so finding. This much as to the documentary evidence relating to section 38. Now, as to section 50. On April 2, 1900, appellant, Logan, filed two applications to purchase section 50 as additional grazing land to his home section, —one dated March 30, and the other March 31, 1900,—and it was awarded to him May 24, 1900. R. P. Arnold, one of the appellees, being an actual settler on the south half of section 46, on May 25, 1900, filed his application and obligation in due form to purchase section 50 as additional grazing land to 46, and made the payments required by law, but the commissioner rejected same because of sale to Logan. Arnold's actual settlement on section 46 is questioned, but we think the evidence was sufficient to warrant the district court in finding actual settlement by Arnold thereon. Logan resided on section 38 from the time he bought it from Reid until the trial of this cause, but there is evidence tending and sufficient to prove that his application and purchase of section 50 and his purchase of No. 38 were in collusion with others, in whose pasture these sections were, and who, it seems, loaned—or at least furnished —Logan all the money he paid on said purchases, and we sustain the conclusion of the district court that said purchases were made in collusion with others, and for their benefit, and that the award of section 50 to Logan was therefore void, and left that section still on the market, and subject to the application of Arnold. There was evidence sufficient to prove that Reid, who had a family, was not an actual settler on 38 when he filed his application to purchase it, and never did reside upon it with his family; and there is perhaps also sufficient evidence to establish his actual settlement thereon. The court below found that he was not an actual settler at the date of his application, and hence it is our duty, where the evidence is thus conflicting, to sustain the finding of the lower court, which we do. The facts are sufficient, we think, to show the grounds upon which we dispose of this case, and we now come to the most serious question in the case; that is, whether the certificate of occupancy for three years issued by the commissioner of the general land office is conclusive upon persons who, after the issuance thereof, make application to purchase the land. The Revised Statutes adopted in 1895, and under which Reid's application to purchase section 38 was made, provides as follows: Article 4218f: "When any portion of said land has been classified to the satisfaction of the commissioner under the provisions of this chapter or former laws, such lands shall be subject to sales, but to actual settlers only." Article 4218c vests the commissioner with all power and authority necessary to carry into effect the provision of the chapter relating to the sale and lease of the public free school lands, "with such exceptions and under such restrictions as may be imposed by the provisions of this chapter, or by the constitution of the state." Article 4218j provides: "All sales shall be made by the commissioner of the general land office, or under his...