M. L. Gambrell v. Wm. Steele, 55 Tex. 582

Bonner, Associate Justice. In our opinion, there is a controlling question in this case which leads to an affirmance of the judgment below, and renders unnecessary an investigation of all the numerous errors assigned. Some of these do not seem to be seriously insisted upon, as they are merely stated in the brief of counsel without reference to authorities, and one of them, the twelfth, is too general. From the testimony in the case, it appears that at the time B. O. Gambrell purchased Mrs.

Shamblin’s preemption claim in controversy, and for seven months thereafter, he had a homestead of his own, derived through a deed from his father. Although the same had not been paid for, yet it by no means follows that it was not his homestead. If the vendor’s lien were not waived, he held the homestead subject to that incumbrance. But until the lien was enforced, which might never occur, the law would protect it as his homestead so long as he occupied it as such, not only as against third parties, but as against the father also. Woolfork v. Rickets, 41 Tex., 358.

The evident purpose and policy of our pre-emption laws are to induce immigration, afford homes to the actual settler, and thereby cause the settlement and improvement of the country. They were not intended, however, to give homes to those who already had them, of their own, in the state, and to permit these owners to acquire pre-emption titles through occupancy by tenants. As the right of Mrs. Shamblin to her pre-emption had not been perfected before her abandonment and sale of the land to B. O.

Gambrell, then under the circumstances of this case as shown by the evidence, it was not subsequently perfected by him, and the land was subject to location by the plaintiff. The rights of a pre-emption settler, though they partake of the nature of a gift from the state, when properly acquired under the laws, should be protected; but unless so acquired should not be upheld to the detriment of the equally meritorious claim of one who holds under a valid certificate for land, issued by the state in payment of a pre-existing obligation. As the defendant below, Mrs.

Gambrell, claimed the land under a patent, there was abstract error in the third paragraph of the charge of the court, in which the jury were instructed that the certificate, transfer, location and survey under which plaintiff Steele claimed title were sufficient to authorize them to find for him, unless his right to recover was defeated by some matter set up and proved by the defendant. The patent under which defendant claimed conveyed the legal title and was prima facie evidence of her right to the land, and the burden of proof devolved on plaintiff to show a prior superior equity.

We are further of opinion, however, that this error was not, under the circumstances, sufficient to demand a reversal of the judgment, as the jury, under the evidence, could not have been misled; for the charge, taken as a whole, stated also the legal effect of the pre-emptio claim under which the patent issued. Judgment affirmed. Affirmed. [Opinion delivered November 15, 1881.]