McCarthy v. Gomez

*14 FISHER, Judge, Section B.—Appellees contend that the court below properly sustained the demurrers to the petition, for the following reasons: 1. Because it appears that appellants did not file on the lands until three months after Gomez filed on the same, and that at this time the land had been surveyed for Gomez, under his application as a pre-emptor, which application and survey was filed and recorded in the records of the surveyor’s office of Hemphill County; therefore the land was titled and equitably owned by Gomez under color of title from the State, evidence-of the appropriation of which was on the county records. Therefore the land was not subject to the homestead claim of appellants. 2. It appeared that the application for the homestead was made in the name of the wife. The husband then living, and the head of the family, she had no authority in law to make the application; consequently she and her husband acquired no rights thereby. 3. That although the petition charges, that Gomez was not a citizen of Texas when he applied for the land, and that he never settled upon the land or occupied it, that such facts do not render his title void, büt simply an attempted fraud upon the State, which can not be urged or taken advantage of by appellants; that only the State can question the title for such reasons. Upon the other hand, appellants insist, that the petition states a cause of action, and that the court erred in sustaining the demurrers, for the following reasons: 1. Because it appears that the appellants have applied for the land as a homestead donation, and that under such application they had it surveyed, and the field notes recorded and returned to the Land Office, and that they are actually residing on the land as bona fide settlers. 2. Because it appears Gomez was not a citizen of Texas when he attempted to acquire the lands. That the pre-emption law only extended its benefits to citizens of this State; therefore he acquired no right or title. 3. That the failure of Gomez to reside upon the land as a bona fide settler, or make a bona fide settlement thereon, forfeited his right thereto, and the land became a part of the public domain, and subject to be acquired by appellants as a homestead donation. 4. That the application by appellants to acquire the lands being made in the name of the wife did not render it invalid. That it was made by the wife for the benefit of the family, and for the benefit of the husband, the head of the family; and the lands acquired thereunder would be the homestead of the husband and of the family. The foregoing presents, in substance, the views of both parties as to the questions in the case. 1. The fact that the application to acquire the land as a homestead donation was made by appellant Mrs. McCarthy under the circumstances alleged would make it none the less the application of appellant Simon *15 McCarthy, upon his behalf as the head of the family. The purpose of the application was to acquire a homestead for both appellants, and under the arrangement between them as pleaded the right acquired by virtue of the application would inure to Simon McCarthy as the head of the family. If the application to acquire the land was made as stated, and it should be granted to Mrs. McCarthy, her husband Simon McCarthy would be precluded from receiving a homestead donation in other lands, and would be held to the homestead acquired under the agreement between himself and his wife. Decourt v. Sproul, 66 Texas, 368. 2. If it is true, as alleged in the petition, that appellee Gomez was a citizen of the Republic of Mexico, and not a citizen of Texas, at the time, he attempted to acquire the lands as a pre-emption, he is not entitled to the benefits of the pre-emption laws. Article 3924, Sayles’ Civil Statutes, reads: “Every person 18 years of age or over, who is a citizen of the State of Texas, and who shall hereafter in good faith settle upon and occupy any part of the vacant and unappropriated public domain, not exceeding 160 acres, shall have the right to purchase same, including improvements, at the sum of $1 per acre, under the stipulations hereinafter provided.” This provision of the law has not been construed as to the question before us, so far as we have been able to discover. But a construction has been given to article 3937, Sayles’ Civil Statutes, that grants to every person who is the head of a family a homestead donation. In Gammage v. Powell, 61 Texas, 629, it is decided that the class of persons entitled to the benefits of the law are heads of families, and that proof of this fact is essential in order for the right to exist. The evident reason for this construction is, that the law in plain terms confers the benefits upon a certain class of persons, and that this necessarily excludes the idea that it was the intention of the law to grant the privilege to others not named in the statute. We think the same reasoning would apply in construing article 3924. Such being the construction we place upon the law, appellee Gomez was not entitled to its benefits. The land in this case is not patented, and we do not intimate what would be the proper construction of the statute in such a case. We leave this question undecided. 3. The petition alleges that Gomez was not at the time of his application to acquire the pre-emption right, and since, in actual possession of the land, and was not an actual bona fide settler thereon. The law requires that the applicant for the pre-emption right shall actually settle upon and occupy the land. This is one of the essential conditions upon which the right is granted, and a failure to make this settlement and occupancy will result in a forfeiture of his right and title to the land, and thereupon it will become subject to entry and location as other vacant and unappropriated lands. Sayles’ Civ. Stats., arts. 3924, 3926, 3933; Gammage v. Powell, 61 Texas, 630; Garrett v. Weaver, 70 Texas, 464; Bur *16 leson v. Durham, 46 Texas, 159; Calvert v. Ramsey, 59 Texas, 491: Gambrell v. Steele, 55 Texas, 585; De Montel v. Speed, 53 Texas, 341. 4. If it be true, as alleged, that appellee Gomez is of the class of persons that are not permitted to acquire a pre-emption right, or that he has abandoned and lost his right by a failure to reside and settle upon the land, and thereby the land became public domain, subject to entry and location, then it was not titled and equitably owned when appellants attempted to acquire it. 5. The fact that appellants failed to make their application to acquire the land as a homestead donation within thirty days after their settlement thereon would not defeat their right thereto, because the right of no other person intervened before they did make the application. Gammage v. Powell, 61 Texas, 630. We are of opinion that the court erred in sustaining the demurrer. The case should be reversed and remanded. Reversed and remanded. Adopted May 24, 1892.