Fitzhugh v. Johnson

SPEER, Associate Justice. This is a school land case, in which Mrs. M. T. Johnson seeks to recover four sections of land from D. K. Fitzhugh. From a judgment in favor of plaintiff the defendant has appealed. The cause was submitted on special issues, the answers to which establish the fact that appellee and certain of her predecessors in title were bona fide settlers on, and continued to occupy in good faith, the land in controversy. Appellant’s assignment that the court, erred in refusing' to instruct the jury to return a verdict in his favor raises the only question for our determination, for it appears to be undisputed that A. F. Fisher, appellee’s remote vendor, had not paid into the State Treasury the first payment on the land in question on April 3, 1907, the day on which he and appellant both filed their applications and bids to purchase the land. *628 This fact being undisputed, it was not error, then, to refuse to require the jury to make a finding on it. And it is because of this undisputed fact that appellant insists his summary instruction should have been given. Appellant and A. L. Fisher both filed applications and bids to purchase the land on April 3, 1907. Appellant at the time deposited the necessary cash payment with the State Treasurer, but Fisher did not. Fisher’s bid being the higher, the Commissioner of the General Land Office awarded the land to him, and on May 16, 1907, the State Treasurer returned appellant’s cash payment. One, Hevill, was duly substituted for Fisher as purchaser of the land on July 19, 1907, and it was this settlement and occupancy of Hevill and subsequent vendees which the special findings of the jury affirmed. Appellant did not return the cash payment to the State Treasurer until March 27, 1908. It will be thus seen that an issue was raised as to appellant’s abandonment of the purchase. This issue was not submitted or requested to be submitted to the jury, and, under the statute, the presumption is that the court found upon it in such a way as to support the judgment rendered. If appellant abandoned his purchase of April 3rd, then the substitution of Hevill was complete and took the land off the market, even though the attempted sale to Fisher was void for his failure to deposit the first payment with the State Treasurer already referred to. Johnson v. Bibb, 32 Texas Civ. App., 471 (75 S. W., 71); Burnett v. Wommock, 85 S. W., 1199. That appellant’s conduct in acquiescing in the return by the State Treasurer of his cash payment would raise the issue of abandonment of the purchase, see Hamilton v. Gouldy, 46 Texas Civ. App., 506 (103 S. W., 1117); Buchanan v. Barnsley, 51 Texas Civ. App., 253 (112 S. W., 118). We can not hold with appellant, then, that the court erred in not directing a verdict in his favor. The only remaining assignment attacks the verdict and judgment as being unsupported by the evidence, and sets forth the respects wherein the judgment is alleged to be contrary to the preponderance of the evidence, but does not exhibit the state of the evidence upon this issue of abandonment by appellant. Besides, the evidence supports the verdict. Ho error has been assigned which would call for a reversal of the judgment and it is, therefore, affirmed. Affirmed. Writ of error granted, reversed and rendered, 105 Texas, 318.