Zettlemeyer v. Shuler

• Decision Date: 16 December 1908
• Citation: Zettlemeyer v. Shuler, 115 S.W. 78, 52 Tex. Civ. App. 648 (Tex. App. 1908)
• Parties: ZETTLEMEYER v. SHULER.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

115 S.W. 78

ZETTLEMEYER v. SHULER.^†

Court of Civil Appeals of Texas.

December 16, 1908.

Rehearing Denied January 13, 1909.

Appeal from District Court, Kimble County; Clarence Martin, Judge.

Trespass to try title by Lee Shuler against Samuel Zettlemeyer. From a judgment for plaintiff, defendant appeals. Affirmed.

Moursund & Moursund & Rowe, for appellant. Wilson & Blackburn and E. Cartledge, for appellee.

NEILL, J.

This suit was brought by appellee against appellant, in the form of an action of trespass to try title, to recover a 640-acre survey, No. 52, located in Kimble county, for the public school fund, by virtue of certificate No. 1426, issued to Beaty, Seale & Forwood. The appellant answered by a general denial and a plea of not guilty. The case was tried without a jury, and judgment rendered for the plaintiff.

Conclusions of Fact.

Section 46 in Kimble county, located for the public free school fund by virtue of certificate No. 1-306, issued to Beaty, Seale & Forwood, was purchased by W. H. Howell and awarded him by the state as an actual settler on October 18, 1902, and was by the heirs of Howell transferred to plaintiff on February 1, 1904. Lee Shuler, plaintiff, made proof of occupancy of said section by Howell and himself for three years from date of sale, October 13, 1905, and filed the same in General Land Office on January 22, 1905, and certificate of occupancy was issued to him by the commissioner. Section 52, the land in controversy, was awarded to Shuler on March 31, 1906, upon his application dated March 1, 1906, and filed in the General Land Office March 9, 1906, as additional land to his home section No. 46. This award was on October 23, 1907, canceled by the Commissioner of the General Land Office for failure of Shuler to reside on his home tract. On October 26, 1907, section 52, which is in controversy, was awarded to Samuel Zettlemeyer, the defendant on his application of September 2, 1907, and filed in the General Land Office September 4, 1907, as additional land to section 12, certificate of 0/123, J. H. Gibson, and he is in possession under said award. The section in controversy is within a radius of five miles of both sections 46 and 12 above mentioned. The facts above recited were admitted by the parties upon the trial.

The only controverted issue in the case is whether Shuler was an actual settler upon and resided on section 46 on March 1, 1906, when he filed his application in the General Land Office to purchase section 52, and it was awarded him as additional land to his home section. The evidence upon this issue was reasonably sufficient to support an affirmative finding, and we concur with the trial court in such conclusion.

Conclusions of Law.

1. The court did not err in admitting in evidence, over objection of appellant that it was secondary, a copy from the records of the office of the State Treasurer of an account, duly certified to by him, showing the payment of principal and interest due the state upon section 46, B. S. & F. Article 2308, Sayles' Ann. Civ. St. 1897. This certificate is not of the conclusions of the Treasurer, but of what is "contained in the * * * records of his office," which is admissible as original evidence under the statute cited. Smithers v. Lowrance, 100 Tex. 77, 93 S. W. 1067.

2. This, in effect, disposes of appellant's contention under the second assignment, that there was no legal proof of the payment of interest on section 46. It would seem under the authority of Smithers v. Lowrance, supra, that, inasmuch as the land in controversy had been sold and awarded by the Commissioner of the General Land Office to the appellee, it was incumbent upon appellant, who claimed under a subsequent award, to show any fact or facts which would render ineffective the previous sale; for, as is said in that case "the Commissioner of the General Land Office is without authority to...