Simpson v. Oats

• Decision Date: 16 December 1908
• Citation: 114 S.W. 105
• Parties: SIMPSON et al. v. OATS et al.
• Court: Texas Supreme Court

114 S.W. 105

SIMPSON et al. v. OATS et al.

Supreme Court of Texas.

December 16, 1908.

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

Action by J. B. Simpson and others against B. L. Oats and others. From a judgment of the Court of Civil Appeals (109 S. W. 940) affirming a judgment for defendants, plaintiffs bring error. Affirmed.

Allen & Dohoney, for plaintiffs in error. L. L. Wood, for defendants in error.

BROWN, J.

J. B. Simpson married the only daughter of J. W. and Hannah Ripley. The wife of Simpson died in 1892, leaving two children, L. E. and W. H. Simpson. J. B. Simpson sues in his own right and as next friend of the two children, who are minors. In 1868, J. W. Ripley and Hannah Ripley were husband and wife and settled upon the land in controversy under a promise by J. W. Ripley's father that he would give to them 100 acres of the land. Ripley and his wife improved the land by building thereon a cabin and fencing in and cultivating some of the land; all the improvements aggregating $50. The father made the deed to J. W. Ripley for the 100 acres. Hannah Ripley died on October 7, 1870, leaving surviving her a daughter, Virginia, who, with her father, J. W. Ripley, continued to reside upon the land. After the death of his wife, J. W. Ripley learned that his father had no title to the land, that it was public domain, and in January, 1871, he made application to the surveyor, who surveyed for him 160 acres of the land and made out and returned the field notes of the same on the 27th day of January, which were filed in the General Land Office on February 23, 1871. At the time of this survey, J. W. Ripley made proof of his occupancy of three years from January, 1868 to January 1871, which was returned to the General Land Office; but no patent was issued to the land upon that proof. On February 28, 1874, J. W. Ripley made proof under the statute of his occupancy of the land for three years, dating from January, 1871, and on April 10, 1874, the General Land Office issued patent in the name of J. W. Ripley upon that proof. Up to the death of Hannah Ripley, she and her husband believed that they had title to the land under the deed from the father, and no steps were taken to pre-empt the land during her lifetime. The child Virginia lived with her father on the land until 1885, when she married the plaintiff J. B. Simpson. The children named were born of that marriage, and she died in 1892. J. W. Ripley married the second time in 1875.

On the 12th day of August, 1870, the Legislature of this state enacted a statute entitled: "An act to regulate the disposal of the...