ANTHONY v. BALL et al., 183 S.W. 1142

YANTIS, J. Suit in trespass to try title was filed in the district court of Reeves county, Tex., by Geo. L. Anthony, plaintiff in error, against J. F. Ball and J. D. Ball, defendants in error. The latter answered by plea of not guilty. The land in controversy was public free school land. On June 23, 1906, Anthony made application to the Land Commissioner to purchase the land. It was awarded to him on said application July 14, 1906. He made settlement on the land, and filed the affidavit of settlement in the General Land Office, and made payment of one-fortieth of the purchase price therefor.

In November, 1907, the Land Commissioner declared a forfeiture, indorsing on Anthony’s application, “Land forfeited for failure to reside thereon as required by law.” In January, 1909, the Commissioner of the General Land Office awarded the land to the defendants in error, J. F. Ball and J. D. Ball. The case was tried before a jury, and a verdict and judgment were rendered in favor of the defendants in error, J. F. Ball and J. D. Ball.

Appeal was taken by Anthony, the plaintiff in error, to the honorable Court of Civil Appeals for the Eighth District, in which court the judgment of the district court was affirmed. On petition for writ of error presented here by Geo. L. Anthony, plaintiff in error, a writ was granted in his favor; this court then being of the opinion that the evidence made an issue of fact for the consideration of the jury as to whether Anthony had abandoned the land. At the trial of the case, the court charged the jiiry that if they belieVed Geo. L.

Anthony, on or before the expiration of 90 days from the date of the award of said land to him by the Commissioner of the General Land Office, was in person and in good faith an actual and bona fide settler on said land, and that within 30 days from the date of said settlement, if any, the plaintiff made and filed with the Commissioner of the General Land Office his affidavit of settlement, in such event the plaintiff could recover.

This charge was by the honorable Court of Civil Appeals properly held to be erroneous, because the law did not require Anthony to file his affidavit within 30 days of settlement, but, instead, did require him to file it within 30 days of the 90 days from the date of his purchase. The Court of Civil Appeals held that this error was reversible if there had been sufficient facts on which to base a recovery in favor of Anthony, but that the particular facts in this case would not have supported a verdict for Anthony, and that the giving of the erroneous charge was harmless error.

After a careful review of the evidence, we have reached the conclusion that this holding was correct. We think the undisputed evidence shows without material conflict that Anthony abandoned the property as a permanent place of abode.

After improving the land and making settlement thereon, he occupied it, according to his own statement, but from 2 to 4 weeks, and then left it, going to East Texas, where he remained from 4 to 6 weeks, when he returned to the property, remaining inferentially but a few days; that he again left and remained in East Texas and North Texas from the 14th day of September, to about the 6th day of May, following, or about 7½ months. During his second trip away from the land it was declared forfeited by the Land Commissioner, early in November.

So it appears that during the first 9½ months after making settlement on the land he was absent 8½ or 9 months. Mere absence for that length of time alone would not, as a matter of law, necessarily constitute an abandonment of the property as his permanent place of abode. If his absence was in fact only temporary, it would not work a forfeiture of Ms rights, if his absence was enforced by causes consistent with his actual occupancy of the land. Bustin v. J. T. Robison, 102 Tex. 526, 119 S. W. 1140; Andrus v. Davis, 99 Tex. 303, 89 S. W. 773.

There is no requirement that the purchaser should never leave his land, but it is required by law that he occupy it in good faith .as an actual settler for a period of three consecutive years. Temporary absence therefrom by a settler for purposes consistent with tMs obligation is permissible, if he acts in good faith as an actual settler. But absence on business of a nature which is inconsistent with his obligation to be in fact an actual settler in good faith rightfully incurs a forfeiture of his contract, because it amounts to a breach thereof.

We think the line of business pursued by Anthony during his absence, combined with his protracted absence, sufficient to deny him a recovery as a matter of law on the ground that he abandoned the occupancy of the land.

He states that he went East to sell a piece of land which he had in Van Zandt county; that while he was away he went into the land business, and was trying to sell his own land and other land also; that while he was away he clerked for Bush at Grand Saline; that he had charge of the business for them a little while; that he was in and out of Grand Saline, in charge of the business for Bush Bros, three or four months, boarding at a hotel and living in the country with a friend; that when he left Grand Saline he went to Gainesville and Terrell; that in Gainesville he consummated a trade; that before he left he sought and secured the advice of an attorney, who told him that he could leave without forfeiting his land.

It is true he also testified that he had been off of his land purely on business, and did not intend to remain away; that he considered this

section of land his home; and that he had no other home. But he does not explain his protracted absence, as being unavoidable, or in aid of his occupation of the land. Little more than his intention to return is shown, and mere intention to occupy the land is not the equivalent of actual occupation, and is insufficient to cover the requirements of his contract.

We think that the intention alone to return to the land would not preserve his rights, or constitute him, within the meaning of the statute, an actual settler with a permanent residence on the land, when, as in this case his intention was accompanied with purposes and a course of business dealings inconsistent with the duty which he owed under his contract to occupy the land as a place of permanent abode, as an actual settler on said land.

We therefore hold, as did the honorable Court of Civil Appeals, that, though the charge complained of was erroneous, it was harmless, when, according to all the evidence, no other verdict than the one which was rendered against him would have had support in the evidence. The judgments of the district court and of the Court of Civil Appeals are in all things affirmed. other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes