Appellant instituted this suit in trespass to try title to recover from appellee four sections of school land situated in Dawson County. Upon a trial before the district judge judgment was entered for the defendant in the action.
The lands in controversy were originally awarded to appellant, and the regularity of this award is in nowise called in question. She continued to reside upon these lands as the law requires until about the 16th day of September, 1903, at which time she left them for the purpose of attending the State Normal School, at Denton, Texas. On the 22d day of December, 1903, she returned to the land and remained there one or two days, and again went to the state normal, where she remained as a student in that institution until the 23d day of May, 1904. On her final return from the state normal she again took up her residence on the home section, and resided there to the time of the trial of this case. Upon affidavits attacking her occupancy of the land, the land commissioner of the state forfeited the sale to her on June 20, 1904. Upon these facts the trial court found that Miss Andrus' absence from the land from September 16, 1903, to May 26, 1904, returning only once for not exceeding two days, was a failure upon her part to reside upon the lands as contemplated by the law, and such failure forfeited the lands to the state and placed the same again upon the market for sale. We are of the opinion that this conclusion is correct.
In section 3 of the Act of 1901, relative to the sale and lease of public lands, it is provided: "If any purchaser shall fail to reside upon and improve in good faith the land purchased by him as required by law, he shall forfeit said land and all payments made thereon to the state to the same extent as for nonpayment of interest, and such land shall be again upon the market as if no such sale and forfeiture had occurred, and all forfeitures for nonoccupancy shall have the effect of placing the land upon the market without any action whatever on the part of the commissioner of the general land office." This we take to mean that the character of settlement and occupancy required of a purchaser in the first place, viz., an actual residence or occupancy rather than a virtual *Page 304 or constructive one, must be continuous for the prescribed term of three years. The decisions defining residence, within the meaning of the venue statutes, and those defining abandonment, when homestead rights are called in question, can have little or no bearing whatever upon the issue to be determined here. The question is simply one of whether or not appellant's absence from the land while attending school in a distant county for the time shown, was a failure to reside upon the land purchased by her as required by law. We think it was. While it can not be denied that one may actually reside upon the land and yet be occasionally temporarily absent therefrom, yet taking into consideration the length of the absence, its purpose, and the necessary residence at a place other than on the lands in controversy, it can not be held that appellant was actually residing during this time upon the lands purchased from the state. If an absence at school for eight months may be allowed, we see no reason why a similar absence for three years, should not also be allowed. In this latter case, then, we would have the anomaly of an actual settler making proof of three years' actual occupancy of his land, when in truth he had been absent therefrom and actually residing in another place during the whole time. This we think would be entirely to defeat the policy of the law, which clearly contemplates the actual occupancy of public land sold to settlers thereon. If the forfeiture in such case be technically for abandonment, abandonment in such connection is not to be tested by the rules defining that term generally, but by the sense in which it was intended to be used as gathered from the context of the act. We find the ground of forfeiture there stated, to be a failure to reside upon the land. In other words, it is not a question of intention wholly but one of actual residence. Mann v. Greer, 77 S.W. Rep., 34.
The judgment is affirmed.
Conner, Ch. J., dissenting.
Delivered June 10, 1905.
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