Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-12
COURT OF APPEALS.
Full Text Of Decisions Rendered in the Fort
Worth District

Worth District.
Court Of civil appeals, Second district y.
ID. Tarlton, chief justice. II. q. Head
and !. w. Stephens, associate justices;
W. l.. HUFF. clerk.
No. OIL. A. Baker appellant vs.. Mar
garet burroughs Appellee. Appeal from
Taylor county.
CONCLUSIONS OF FACT.
on the 2Ith day Of January. 1877, patents
were issued 10 Grimes county Tor four
leagues Of land, granted To II Tor educn-
tiounl purposes 10y virtue OF an act APP
proved Jan 10 1850 The 100 acres NJ
land In controversy lu this suit IL a part OF
this land. being embraced in league No
LAG, ON the 18th OF April, 1856, the COM
misslouers' court ~ Grimes county, at a
regular term OF said court ordered that
the four leagues Of laud mentioned above
be sold, and directed the county Judge "
Grimes county tO advertise the sale thereof
In pursuance Of this order the county Judge
Dallas Morning News. The land was Of
fered Tor sale on not less than ten years
uine, with Interest payable annually. in
advance and the advertisement stated
TINT bidA would be received until the 25th
day or june 1885. The court rcserying the
right 20 reject any ana all bids. IN pursu-
uucc Of this Oftor 10 sell. n. q. Burlington,
l.. Mcdaniel and Jack Baker bid for said
four leagues, the sum Of S24J per acre.
un twenty years time. With Interest at tho
rate, OF per cent per aunum. payable an
nunlly IN advance, the Interest 10 commence
20 run from the first day Of September,
lNSG, and payable on or before oct. l, u
each and every year, the purchase money,
principal and Interest, being secured by
vendors lien on the land. This offer WIS uc
cepted by the commissioners court aud tile
sale confirmed. At the July term 1856.
said Burlington Mcdaniel and Bakcr COM
AnnnIItlAE al md .V "a
regular chain OF transfer from these pur.
chnsera, but II was agreed that her rights
against appellee were only such as thy
purchasers from the county could enforce.
Appellee settled on the land In controversy
IN tho spring OF 1855, and put up d small
pnox house thereon In October,
and put IN cultivation the hrst wear
about four acres ana had under fence ~
the time OF the sale. 10y Grimes county
about eighty acres and ~ the time she was
an actual settler Oh the land within the
meaning OF section VI article of our
constitution. Al this time appellee was Il
widow aud had four children, two III whom
We're under ~ Years Of agt. AMI SHE made
ing II her permanent home. At the time ~
the death Of her husband which occurred
ia Iurrant county previous Ia the settle.
lucnt OF appellee upon this land Size WINS
living with him upon a tract Of 400 acres
OF land which was his separate pronerty
~ Iufraut county. and at The time OF big
uutS3th thlS was their home, aud the land 10
SIN owned by appellee aud tho children of
htr deceased husband Tue improvements
IUteu l'N appellee upon the land In cuntro.
Neisl Me worth Sit, At the tine appellee
SS' ,,.' up"n ms lunu she had abandoned
hcr homestead upon the 100 acres m Tnr.
ruilt county with the mtUntlon Of NOT again
returning 10 &C. Ou the 18TH OF November
Isl ,aM appellee through her attorney n. l..
benuey, rendered 10 the cOmmisslnuers'
court or Grimes county the notes and rosh
payment which would he due from Lrr I'm
purchase upon the sHlnc terms as INC
ffY,in ui"I I, O{ SUD county 10 Burlington Alc.
clulmeu by her nc 50 - nrr acre Tho prIce
~ which the four leagues We're SOLD me
Hsii3reshd' Ilis tender was madc under the
iuNpWlng circumstances: Mr. Bet,tlnv M
pcurod before the commissioners cn,,rt ~
trlmes county nul offered aud teudcrCl tbs
amount due as cash payment on the lnnJ
Tmw 1's ~, tru'lrrcd me notes for the de-
ietIeu payments, The commissioners court
told nm That II was not necessary to ror,i,t
tue money, ana they expressly Wgircd Ia
tSuH t OF the same ana told Mir. Bentley
.,"' 'ue court had nothing Ia do with II.
Afterwards MIR, Bentley made IA tender Ina
the same way Of the notes and money 10
huntington, who on behalf OF himself Nc.
Daniel ana Baker, refused 10 accept the
same ana said that hp preferred to make
his own sales Appellee had mo- nctuni no.
Tee OF the sale 10 burlington. Mcdaniel ana
Baker untll Ilnker soule time after thr suie
came Ia place the decd 10 himself and 9TH
az.
Taylor county, Tex, sept Is 1851 This
lender was also made hy appellee I'm thls
"aSe ana The money anu notes Deposited
IN court Under this state of facIs NM
pellcc, in her answer Insisted upon ber
prior part TO acquire the land Ia cOutrn
yerSy under the section NJ our constitution
above referred To-, and thls appeal Is prose.
cuied FROM Judgment IA her favor ne.
cosnlEiug such right.
OPINION.
Appellant ia her first assignment ar error
Insists that inasmuch as npDellee Was
inc owner Of an intefaEt In other land anil
entitled To homestead right therein she
was mot an actual settler upon This land
within tho meaning OF section o. of nrtieie
OF our constitution, aud ia supuort of tbis
contention cites us to several cases. which
W W eme'' holu mat under such oircuui-
stances, appellee could not acquire a IRE
cmptl0n homestead under the INV fIq,es,
decisions We understand 60 Dc bnsad unnr
Il STATUTE IN reference 10 tlls lust nnlned
class of claimants. BEFORE anyone can ne,
pulrc pre-cmpti0u homestead nnJnr -
slNlhtc ne is required TO make affidavit "tG1t
ne IS without any homestead VI his own ="
tx y. $3.50; and under tlls stanlia 4, -
several times been held tbnt one ,,. !, nas
ready mas a homestead h not pntitieI ",
acquire other land by pre.eruI,tlnn 80, ~"
WI,W W, steele ~ Texas, 2s2l; Doughty w
ndii. aN Texas, 5lS. Garrison ~ sEg'f
90 IeNns, Gu2L No such requirement. 1917 "uN |
ever ~ made OF actual settlers who 80.
gwen, me prior right 10 purchase eor"ty
49, ''A+,A - tue httiluu OF our tnuatIfU- ]
tinn cited above. This seetion r von1litu'
lan aS" IN 'C shy may sell or dispose OF las
provided by the commissioners cd,,s 70 nc |
s sui5 l county Actual settlers residing on
right OF purchasing the same IN tbo pIlof
Sit 'pSlF S, not TO exceed 100 acres
price shall not include the value ~ w W.iien |
tier 's Ths made thereon by such ser
certainly does hot Include ms Si s.stule |
tS v.s p pT ao We think It's spirit Includes
turln, Presumption settlers are given V't /
homtSieads as gratuity. bnt stJsu lien
Nv T theT S@n only acquire Tie land olahne9
c0ufaissIoGsrrs sng tnt same price tnat the |
Of peha 3sen on nothing huI the prior right
their Improvements, IL viii tberefi, ~ say
o,,pIps s isDa 'n9t reasons exist why those
onire bonest,ss, il QUIZ not be allowed 10 No. /
10 prior og r fNs' ~ the case Of those given
ties ana ~ 20 purchase frosn the doun /
a hotnest esg NAY nave been entitled te