
    BARNES v. PATRICK et al.
    (Supreme Court of Texas.
    April 10, 1912.)
    1. Trespass to Try Title (§ 33*) — Pleading — Defects.
    Where, a petition in trespass to try title describes the land as section No. 48. in Mock C — 3, located and surveyed under certificate No. 838, issued to the East Line & Red River Railway Company, and section 54 in block C — 3, located and surveyed by virtue of certificate No. 5, granted to the Denison & Pacific Railway Company, a paragraph in the answer alleging defendant’s claim to land described as “survey No. 48, in block C — 3, D. & P. Ry. Co.” and “survey No. 54, block C — 3, E. L. & R. R. Ry. Co.,” is not fatally defective; the transposition in the names of the grantees of the tracts not being sufficient to mislead any one, especially where other allegations show that the land claimed by defendant is that described in plaintiff’s petition.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 42-49; Dec. Dig. § 33.]
    2. Public Lands (§ 173) — Actions—Statutory Provisions.
    Under Acts 29th Leg. c. 29, §' 1, providing that any person claiming the right to purchase or lease any public free school lands which were sold or leased to any other person before the passage of that act should bring a suit therefor within one year after the act went into effect, and not thereafter, the filing of an answer in trespass to try title within one year after the passage of the act, setting up such a right, is a sufficient compliance with the terms of the statute; the act simply requiring that the adverse claim be asserted within one year, and not that any particular form of action be brought.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.*]
    3. Pleading (§ 34*)— Sutotciency.
    Technical rules of pleading cannot be allowed to defeat a right substantially alleged.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig.' §§ 66-75; Dec. Dig. § 34.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by J. B. Williams against L. C. Barnes, in which W. H. Patrick and others, administrator and heirs of J. B. Williams, were substituted as plaintiffs. On appeal the Court of Civil Appeals reversed a judgment for plaintiff, but, on rehearing, affirmed that judgment (143 S. W. 978), and defendant brings error.
    Reversed and remanded.
    See, also, 44 Tex. Civ. App. 298, 99 S. W. 127; 111 S. W. 432; 102 Tex. 444, 119 S. W. 89.
    H. B. White and A. T. Cole, both of Clarendon, for plaintiff in error. Madden, Tru-love & Kimbrough, of Amarillo, and J. H. O’Neall, of Clarendon, for defendants in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BROWN, C. J.

The defendant in error having filed an answer in this case, the application will be granted, and we will dispose of the case. The dates are not material. Therefore they will not be stated, except when necessary.

At some time prior to January, 1905, J. B. Williams, as an actual settler, applied to purchase, and the Commissioner of the General Land Office awarded to him, the two half sections of public free school land in controversy. At a date prior to January, 1905, L. C. Barnes actually settled upon and improved one of the half sections awarded to Williams, and applied to purchase it as a home, and also applied to purchase the other half section as additional lan'd. Prior to January, 1905, Williams instituted suit against Barnes to recover possession of the two half sections of land, claiming them under the award of the Commissioner, and on the 4th day of January, 1905, Barnes filed an answer attacking the ^award made to Williams upon the ground that Williams had never settled upon the land as a home,, Barnes claiming the right to buy the land under his application which had been rejected by the Commissioner. Williams died, and his administrator and heirs made themselves plaintiffs by an amended petition, in which they alleged the settlement of their father and all facts required to show that he was lawfully entitled to purchase the land, and, if true, would sustain the award. The answer of Barnes, if true, was sufficient to show that the award to Williams was void. The plaintiffs alleged that Barnes was in possession of and claiming the land sued for, describing it thus:

“First Tract: A half section survey of land, known and described as section No. 48, in block C — 3, located and surveyed for the benefit of the common school fund, under and by virtue of certificate No. 838, issued to the East Line & Red River Railway Company, as said half section survey of land is shown by the official map and plat of Donley county, Tex.
“Second Tract: One certain half section survey of land known and described as section 54, in block C — 3, located and surveyed for the benefit of the common school fund by virtue of certificate No. 5, granted to the Denison & Pacific Railway Company, as said section survey of land is shown by the official map of Donley county, Tex.”

In his answer Barnes describes it as the land in controversy, repeating precisely .the description that plaintiffs gave, denying plaintiffs’ right to that land, and asserting his superior claim to it.

In the next paragraph of the answer Barnes alleges the facts of his settlement upon and application to purchase the land, describing each half section thus:

“Survey No. 48 in block C — 3, D. & P. Ry. Co. as a home having prior thereto settled upon said land in good faith making it his home, and was at the time of making his said application residing thereon, in good faith making it his home.”
“Survey No. 54, block C — 3, E. L. & R. R. Ry. Co. as additional land to his said home section, it being within a radius of five miles of his said home section.”

We must com-ider the pleadings of both parties to determine the effect of the mistake in defendant’s answer. The petition described each half section accurately, and alleged that Barnes was in possession. Barnes’ answer described the land as “the two half sections” in controversy, which he claimed the right to purchase. The allegations show definitely and beyond controversy that both parties were claiming the same land. It is apparent from the petition and answer that the description given in the second paragraph of the answer was a mistake of ihe pleader in using the letters which indicated the grantee of the certificates. The number of the block was correct in each, also the numbers of the certificates and of the surveys. Such apparent mistake could not have misled any one. Stout v. Taul, 71 Tex. 441, 9 S. W. 329; Fears v. Albea, 69 Tex. 437, 6 S. W. 286, 5 Am. St. Rep. 78. Of a similar mistake the court said: “Taking the answer altogether, we think it perfectly apparent that the insertion of the name of Mrs. Fears in the position that it occupies in the answer was a clerical error, and that if counsel were deceived and misled that it was on account of negligence and want of ordinary care and attention on their part to the matter at hand.” The answer clearly set out the defects in plaintiff’s claim, and the reason why the land should not have been awarded to Williams, which, if true, made that award void, and, being void, defendant’s allegations showed a right in him to purchase the land. The answer was sufficient.

The facts alleged brought the case within the terms of the act of 1905, the first section of which reads: “That hereafter all persons claiming the right to purchase or lease any public free school lands, or any lands belonging to the State University, or either of the state asylums which have been, heretofore or which may be hereafter sold or leased to any other person under any provision of the law authorizing the sale or lease of any of said lands, shall bring his suit therefor within one year after this act goes into effect, or after the date of the award of such sale or lease, if such award is made after the taking effect of this act, and not thereafter.” Laws 1905, p. 35, c. 29. The district court excluded the evidence that would have established the invalidity of Williams’ claim and Barnes’ right, which ruling was an error for which the Court of Civil Appeals properly reversed that judgment, but the Court of Civil Appeals erred in rendering judgment against Barnes. His answer contesting the award to Williams was filed within the year prescribed by the statute. If the allegations were true, the award to Williams was void, and Barnes had a valid claim.

No technical rules of pleading can be allowed to defeat a right substantially alleged. When Williams instituted his suit against Barnes to recover the land, before the act of 1905 was passed, he put the validity of his claim under judicial investigation, and Barnes had a right to defeat his recovery which would have adjudicated the rights of the parties. In such proceeding, no affirmative action by the court was necessary declaring Williams’ claim to be void or to remove any cloud on Barnes’ title. The defeat of recovery by Williams would have settled the rights of the parties. The terms of the act of 1905 above copied do not indicate that any form of actibn was contemplated, but simply that the adverse claim must be asserted within one year.

The trial court erred in excluding the evidence offered to show Barnes’ right, and the Court of Civil Appeals erred in affirming the judgment of the district court. It is ordered that the judgments of the district court and of the Court of Civil Appeals be reversed, and that the cause be remanded to the district court of Donley county.

PHILLIPS, X, did not participate in the decision of this case.  