Trueheart v. Simpson

• Decision Date: 10 January 1894
• Parties: TRUEHEART et al. v. SIMPSON et al.
• Court: Texas Court of Appeals

24 S.W. 842

TRUEHEART et al. v. SIMPSON et al.

Court of Civil Appeals of Texas.

January 10, 1894.

Appeal from district court, Wise county; J. W. Patterson, Judge.

Action by H. M. Truehart & Co. and others against C. C. Simpson and others. From a judgment for defendants, plaintiffs appeal. Reversed.

McMurry & Gose, for appellants. Carswell & Woody, for appellees.

HEAD, J.

Appellants instituted this suit, as plaintiffs, to recover of appellees, as defendants, the title and possession of the land in controversy. Appellees Simpson and Harrison answered, describing the land claimed by them respectively, and disclaiming as to the balance, and prayed for affirmative relief quieting them in their titles. Appellee Coffer described the land claimed by him, and disclaimed as to the balance, but asked no affirmative relief. Appellants failing to appear on the second day of the term, the court dismissed their cause of action for want of prosecution, and, proceeding to trial ex parte upon the pleadings filed by appellees, rendered judgment in their favor, quieting their title to the land claimed by them, and canceling the patent issued to appellants in so far as it conflicted therewith. This judgment was at least erroneous as to appellee Coffer. The only judgment that should have been rendered as to him was a dismissal of plaintiffs' cause of action. Burger v. Young, 78 Tex. 656, 15 S. W. 107.

It is shown by the answers filed by appellees Simpson and Harrison that they each claim 160 acres of the land as a pre-emption homestead; that the former settled upon the land in 1885, and the latter in 1886; that neither filed application to have it surveyed until after appellants located their certificate thereon, in the fall of 1888; that patent was issued to appellants in August, 1889, upon their location, made as aforesaid; that, prior to the location made by appellants, said appellees made frequent application to appellant Tyler, verbally, to survey the land for them, he being at that time surveyor of Wise county, but he declined to do this, upon the ground that it was covered by other locations; that he promised Harrison, if he would wait until the expiration of his term of office, he would show him how to acquire the land as a homestead; that he represented to Simpson that his improvements were not on the land; that, by these means, he induced them to delay filing their applications until the expiration of his term of office, in November, 1888, and then filed on it for himself and the other appellants. It is clear from these answers that the 30 days given these appellees after their settlement upon the land in which to make application for its survey had long expired before they spoke to Tyler about it, and the prior right secured to them had been forfeited. 2 Sayles' Civil St. art. 3948; ...