Perego v. White

• Decision Date: 06 May 1890
• Citation: 13 S.W. 974
• Parties: PEREGO <I>v.</I> WHITE <I>et al.</I>
• Court: Texas Supreme Court

13 S.W. 974

PEREGO

v. WHITE et al.

Supreme Court of Texas.

May 6, 1890.

Appeal from district court, Clay county.

Trespass to try title by C. C. White and others against E. J. Perego and others. Const. Tex. art. 7, § 6, provides that actual settlers on county school lands "shall be protected in the prior right of purchasing the same to the extent of their settlement, not to exceed 160 acres."

L. T. Miller and R. Cobb, for appellant. Stephens, Matlock & Herbert, for appellees.

GAINES, J.

Cherokee county sold and conveyed its school lands to Jones & Douglass, who conveyed them to Eustis & Eustis, who in turn sold and conveyed them to plaintiffs in the court below. The defendants below being settlers upon the lands, plaintiffs brought an action of trespass to try title against them, in order to recover possession. All the defendant settlers compromised their claims except appellant, who disclaimed as to all the land except a tract of 160 acres, and as to that went to trial upon a plea of not guilty, and a claim for compensation for improvements in good faith. The plaintiffs introduced in evidence a patent to Cherokee county of the survey embracing the land in controversy, and a regular chain of conveyances from the county down to themselves. The defendant was permitted to offer evidence to prove that he settled upon the land, and established a residence upon it, with a view to purchasing it before the county made a sale. The court, however, disregarded this evidence in the charge to the jury, and instructed them that the plaintiffs had shown title to the land, and that they were entitled to a verdict. There was a verdict and judgment in accordance with the instruction.

In the case of Baker v. Dunning, ante, 617, (decided at the present term,) it was held that a settler upon school lands belonging to a county could not be deprived of his right of pre-emption by a sale to another without an offer to sell first having been made to him in good faith, and a rejection of the offer on his part. In that case the settler, after the sale by the county, made a tender of money and notes — based upon the terms of the sale already made — both to the county and the purchaser, and pleaded these facts as a ground of relief. The court decreed him the land upon condition that he should pay the purchaser the same price per acre that the land had been sold for by the county. The purchase money due the county being payable in installments, he was allowed to pay at corresponding intervals and in corresponding amounts. No complaint was made as to the specific relief granted, and we were not called upon to decide whether it was proper or not. In this case, however, we feel constrained to lay...