Norman v. McCleary

STEPHENS, Associate Justice. Appellants claim the half section of school land in controversy under a purchase made by one Livengood, in February, 1887, through the Land Board, under the Act of 1883, the sale having been made before the land was classified, and not in the county where the land was situated. Appellee claims under a settlement and purchase made in January and February, 1890, followed by three years’ occupancy, in accordance with the Acts of 1887 and 1889. There was a nonjury trial, and this appeal questions the sufficiency of the court’s conclusions to sustain the judgment, the record containing no statement of facts. Of the findings of fact, the ninth reads: “In the fall of 1888, after his purchase from Livengood, Ockauder inclosed said section of land, but never resided thereon or otherwise used said land, and in the fall of 1889 declared his intention to and did abandon claim thereto, except as to the improvements thereon, which he thereafter sold to one J. A. Newlin.” *312 In the summer of 1893, appellants acquired whatever rights Ockander then had, through quitclaim conveyance from him, the land having already been adversely occupied by appellee for more than three years under his purchase from the State, which was in all respects regular, if at the date of his purchase the land was subject to resale. The question arises: did Ockander have any rights to convey? That the original purchase of Livengood was invalid is well settled. Martin v. McCarty, 74 Texas, 128; The State v. Opperman, 74 Texas, 136. His rights, and consequently the rights of his assignee Ockander, depended entirely upon the validating act of 1889. According to the ninth finding quoted above, instead of availing himself of the benefits of that act, Ockander, by voluntarily abandoning his claim, rejected them. This he clearly had the right to do. So, without determining the effect of the act on his rights, we are of the opinion that, on account of his rejection of its provisions by abandonment, they did not inure to his benefit, and consequently that his assignees took nothing by the quitclaim conveyances made more than three years after the purchase and adverse occupancy of appellee. The case is not analogous to those holding that a title to land can not be divested by abandonment, but rather to that of an executory contract of purchase. Kennedy v. Embry, 72 Texas, 387. The judgment is affirmed. Affirmed. Delivered April 10, 1895.