Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-12-30

pellee, McCarty, having applied to pur-
chase the land on the 14th day of July,
1888, under section of the act of April
IL, 1888, providing for the acquisition of
the same by actual settlers in good faith,
he would be entitled to a decree under
his pleadings had his application been
full compliance with this law There
being no assertion of or claim to any
right in appellant Martin, prior to De-
cember, 1888. But it is nowhere shown
by the evidence that the appellee, Nc
Carly, was settler in good faith, as that
character and term has been repeatedly
described and defined in this state.
TBurleson VS. Durham ,46 Tex. 1873 That
this was essential to a recovery by
appellee is recognized by his answer.
But in this important and vital respect
the proof does not support the answer,
which fully alleges him to be such pur-
chaser. This question has been discussed
in Snyder VS.. Num-, &C Tex, 25S, and
cases there cited. And all that we might
say with reference to the necessity for
establishing this fact would be but a
repetition of what was there said. The
evidence of appellee merely shows that
he settled upon and had possession of the
land, and erected valuable improvements
thereon on the = day of March, 1882,
that he desired to purchase the land
and still does wish to purchase the same
under the act of 1881, as provided by
section 8 of the act of 1888. The
statute of April 6, 1881, gives pre-
ferred right to "any persons having
improvements upon any such land prior
to the taking effect of this act for the
period of six months next after the value
tharanf is i've - 1Ean 1891
2, p. ll9. i Section of the act of April
u, provides that "any actual settler in
good faith on the LIST day of January,
1888, shall have the right, ETC., provided
that any actual settler in good faith upon
lands appraised etc. in accordance with
the provisions'of sections one and two of
the act of 1881, etc, shall be permitted
to purchase. 1t is not pretended that
he has any right by reason of having i'm
provements upon the land prior to April
5, 1881. If so, he might, it seems under
section two of that act have had
a preferred right to purchase. for six
months from the date the act of 1881
took effect, which was April 6,
1881. But his right rests primarily upon
the fact of being (under the law by
which he asserts title) an actual settler
in good faith. Not having brought HIM
self within the provisions of the statute
upon which he rests, he has no reason,
we think, to complain of the Judgment
in this case. The remaining question
then is, has the appellant shown such a
compliance with the law OF 1882 as could
authorize recovery. AS we have stated
there was no compliance with the law re-
quiring a classification of the land and
the filing of tabulated statement in the
office of the surveyor of the county where
the land was situated. Nor
was there any offer of the
land for sale at public cutlery at
the courthouse of the county by the per-
son authorized by the board to sell as
provided by section of the act. In Tay-
lor VS.. Burke, Sc Tex. p. GAG, it was
said that this was requirement of the
law, but the question was not raised in
that case and not decided In Snyder vs..
Num-, before cited, it was held that no
right vested in a purchaser as an actual
settler where the application was made
in the absence of an appraisement. In
Ramsey VS.. Nedlin, 90 Tex 24S, also, an
appraisement was held to be absolutely
necessary to entitle purchaser to re-
cover. We think the rule applies with
equal reason to the requirement of the
law that the classification and tabulated
statement shall be made and filed. The
statute prescribes with particularly
the facts which must exist as said in
Snyder vs.. Num-, 90 Tex. 800, before
the applicant shall be entitled to the land.
And though payments upon their re-
spective applications were made by ap-
pellant and appellee and were accepted,
these have been held insufficient to war
rant the presumption that an appraise-
ment had been made, where the evidence
was silent up to this point. In this case
under consideration, the uncontroverted
proof was that no classification of the
land and tabulated statement had been
made and filed in Tom Green county, I'M
der the art of 1888 or at any other time.
So, too, there was undisputed testimony
that the agent authorized by the board
to sell, did not as required by section s |
of that act, sell or offer to sell at !
public cutlery this land. That which the
law had described as absolutely essential |
to be done to vest any right to the land in |
appellant was not done. And we, there |
fore, think he failed TIC establish his |
right to recover, and we are of opinion !
that the Judgment was correct as between |
the parties to this'suit. But we do not |
wish to be understood as saying that the
appellee, McCarty, is precluded from |
showing that he is entitled to the land as
Il settler in good faith under the act of |
April u, 1888. If he can establish this
fact he would be entitled to recover. The
Judgment as between the parties in this
case should be affirmed.
HOBBY, Judge.
December 4 1888. Report of commits
sion of appeals examined, their opinion
adopted and the judgment affirmed.
STATION, Chief Justice.