Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-12-30
BANQUO'S GHOST.
The Land Law of Texas Will Bob
Up in Some Shape.
A Supreme Court Decision Which Para
lyzes Titles to School Lands Sold
by the Land Board.
The Legislature Called on to Intervene in Be-
half of Innocent Purchasers Who Paid
Their Good Money

OtNSh SOhAhS OPliiiOh ~ StSs
This is a suit by the appellant, j. S.
Martin, against the appellee, d. C. Nc
Carly, to recover section 12S, surveyed
by the Southern Pacific Railroad Company
tor the state, for the benefit of the COM
mon school fund, containing Gt0 acres of
land, and situated in Tom Green county.
The plaintiff IS petition is in the usual
form of an action of trespass to try title,
and alleges ownership in plaintiff, on the
I'd day of January, 1884. 1t appears from
the evidence i'll this case offered by the
plaintiff that the land board of the
state, under the act of April II, 1888,
placed the land which is the subject mat
ter of this suit upon the market for sale,
and provided that anyone desiring to
purchase should make written applica-
ton, addressed to the secretary of said
board, describing the land by block,
number, etc, and with a sketch of sur
vey accompanying and price offered.
This was to be registered by the surveyor
of the county, and open to inspection.
The surveyor was required to indorse on
the application the bid and the date of
registry This was to be done at least ten
days before the first Tuesday of the
month following. The application was
to be forwarded to the board for consid-
Grafton. In accordance with the plan
adopted by the land board, for the pur-
chase of the land, the plaintiff on Decem-
Der IA, 1883, applied in writing to the
surveyor of Tom Green county, who
registered the application, and it was for
warded TO the board at Austin, with the
sum of $40 81, the first payment on the
land, which was received by the proper
authorities. 1t was shown by the en-
dOrsements upon the application of Mar
tin, that his bid was No. 220. His obi
CATION for the balance of the unpaid pur-
chase money was executed i'll the sum of
81 1887 .33, payable to the state. The
payment of the sum of SCI sc interest
upon the foregoing obligation is also
shown. Upon the application of Martin
or December II, 1888, forwarded as
above stated to the board ut Austin,
1.-THE land i'll controversy was awarded to
him on January ., 1884. H. b. Tarver
testified that he was the surveyor of Tom
Green county in 1888 and 1884, and was
the agent of the land board, authorized
to sell the school land i'll that county.
That as such agent he did not sell the
land in controversy to Martin, i'll that
county He received and registered the
application and bid made by Martin in
December, 1888, and forwarded it to the
board. That there was no classification
made, and tabulated statement of
the school land on file in his
office under the law. of April u,
1888, or at any other time under the
resolutions of the land board. That the
land in controversy was not sold or Of
fered for sale at public cutlery in Tom
Green county. That there were about
40 applications received by him on the
last day they could be filed in his office.
He did not offer the land for sale at pub
lie cutlery. The foregoing facts consti-
tuted the foundation of appellant S title.
1t appears from the testimony that the
application of appellee was rejected on
April "a, 1884. The questions raised
upon this appeal are: Whether
the appellant, plaintiff, in the lower
court, has established any title, COM
plete or inchoate which would authorize
a recovery. If not, has the appellee
shown by the proof that ne has title as an
actual settler, as especially pleaded by
him. The conclusions of fact and law
found by the court were: ''That the
land in controversy was on the l4th day
u ItCtlllDcl 1cCOy publlC llCC eIhVOl
land in Tom Green county. That on the
18th day of December, 1888, the appel
liant, Martin, made application to pur-
chase under section of the act of April
u. 1888, which was duly filed in the sur
office. That the application was
filed on December 81, 1888, and in the
office of the secretary of the land board
on January 8, 1884. That the first pay
ment of S42 81 was made by
Martin on the land and that
it was awarded to him by the
board on the I'd day of January, 1884.
That the land was not sold in Tom Green
The conclusion of law found
from these facts by the court was that
the sale not having been made in Tom
Green county, where the land was sit
uated, the sale was void. The judgment
was that "'the plaintiff take nothing by
his suit and the defendant go hence with
his costs, and the defendant take nothing
by his cross action, and recover costs of
plaintiff. - Both parties appealed and
assigned errors. The defendant McCarty
pleaded specially his title rs purchaser
under section of the act of April y,
1888, for the benefit of actual settlers in
good faith, who had settled on or before
the 1st day of January, 1888 I'M
der the act of April 8, 1881.
The proof in support az his title consisted |
of his application as such purchaser to
tue Secretary of the land board, dated
July IA, 1888, with the statement that the
land in controversy had been duly APP
praised by the surveyor of Tom Green
and by the commissioners court |
of said county approved and filed in the
land office, as provided by section of
the act of 1888, showing the appraisement
TO have been made under the act of 1881,
at 81 per acre, accompanied by his Aft
iavit that on the - day of March, 1882,
he had procured the surveyor to survey
the said section l2S. That he imme-
iiately entered upon and has contin
uously held possession of and occupied
the same, and does now have full
and complete possession and occu- |
pancy of said section. That he has
erected valuable improvements thereon |
consisting of corral and lumber dwell |
ing house, and has made every effort that |
the law permitted to purchase the same,
and desires now to purchase said section |
under the act of 1881 as provided by sec |
ton of the act of 1888, with the sup !
porting affidavit of two citizens, each |
stating that he knew of his own personal |
that said applicant settled |