Gilmore v. Lockwood

Court of Appeals of Texas

Gilmore v. Lockwood

124 S.W. 111, 57 Tex. Civ. App. 616, 1909 Tex. App. LEXIS 126

DecidedNovember 20, 1909

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Gilmore v. Lockwood, 124 S.W. 111, 57 Tex. Civ. App. 616, 1909 Tex. App. LEXIS 126 (Tex. Ct. App. 1909).

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Opinion

SPEER, Associate Justice.

Appellant, Gilmore, brought this suit in the form of an action of trespass to try title to recover from appellee, Lockwood, a section of school land in Lynn County. The application of appellant was rejected because of a prior sale to appellee, and appellant sought to impeach this sale by showing that appellee was not, at the time of the award to him, an actual settler upon his base or mother section. Hpon appellee’s proving that the Commissioner of the General Land Office had issued a certificate of three years’ occupancy, the trial court instructed the jury to return a verdict in his favor, holding upon the authority of Williams v. Barnes, 111 S. W., 432, that such certificate was conclusive upon the rights of appellant, notwithstanding those rights had their incipiency at a date prior to the issuance of the certificate.

The ruling of the court in declining to hear certain testimony from appellant, and in thus instructing a verdict, constituted error for which the judgment will be reversed. The authority cited undoubtedly sustains the court’s ruling, but has itself been reversed on writ of error to the Supreme Court. Barnes v. Williams, 102 Texas, 444. See also Lamkin v. Matsler, 73 S. W., 970; Bumpass v. McLendon, 48 Texas Civ. App., 410, a writ of error having been refused in the latter case on a subsequent appeal.

Reversed and remanded.

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SPEER, Associate Justice.

Appellant, Gilmore, brought this suit in the form of an action of trespass to try title to recover from appellee, Lockwood, a section of school land in Lynn County. The application of appellant was rejected because of a prior sale to appellee, and appellant sought to impeach this sale by showing that appellee was not, at the time of the award to him, an actual settler upon his base or mother section. Hpon appellee’s proving that the Commissioner of the General Land Office had issued a certificate of three years’ occupancy, the trial court instructed the jury to return a verdict in his favor, holding upon the authority of Williams v. Barnes, 111 S. W., 432, that such certificate was conclusive upon the rights of appellant, notwithstanding those rights had their incipiency at a date prior to the issuance of the certificate.

The ruling of the court in declining to hear certain testimony from appellant, and in thus instructing a verdict, constituted error for which the judgment will be reversed. The authority cited undoubtedly sustains the court’s ruling, but has itself been reversed on writ of error to the Supreme Court. Barnes v. Williams, 102 Texas, 444. See also Lamkin v. Matsler, 73 S. W., 970; Bumpass v. McLendon, 48 Texas Civ. App., 410, a writ of error having been refused in the latter case on a subsequent appeal.

Reversed and remanded.

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124 S.W. 111, 57 Tex. Civ. App. 616, 1909 Tex. App. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmore-v-lockwood-texapp-1909.

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