
    MORGAN v. FLEMING.
    
    (Court of Civil Appeals of Texas.
    Dec. 22, 1910.
    Rehearing Denied Jan. 26, 1911.)
    1. Public Lands (§ 173) — School Lands— Residence — Mistaken Location.
    Where defendant applied to purchase school lands, and in good faith settled in a house a very short distance therefrom, believing that she was living on the land she had applied to purchase, and, on discovering her mistake, moved onto the lands, she was entitled thereto as against a subsequent locator who made his application to purchase with notice of defendant’s claim.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 547, 548; Dec. Dig. § 173.]
    2. Pkincipal and Agent (§ 177) — Knowledge oe ■ Agent — Materiality.
    _ Where it was shown that defendant had notice of a fact shown to have been known to her agent, the agent’s knowledge was immaterial.
    [Ed. 'Note. — Eor other cases, see Principal and Agent, Dee. Dig. § 177.]
    3. Trial (§ 260) — Instructions—Request to Charge — Instructions Given.
    It is not error to refuse a request to charge covered by instructions given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    4. Public Lands (§ 173) — School Lands— Application to Purchase — Residence — Good Eaith — Evidence.
    On an issue of defendant’s good faith in taking up her residence in a house adjoining certain school lands which she had applied to purchase, on the alleged belief that the house, was located on the lands, all the information on which she acted, and all other circumstances tending to show what care was exercised by her in determining whether her settlement was on the land applied for, was admissible whether such information was true or false.
    [Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 173.]
    5. Witnesses (§ 392) — Contradiction — Prior Aeeidavit.
    Where a witness testified to facts contrary to statements contained in a prior affidavit made by him, the affidavit was admissible to impeach him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1249-1251, 1257; Dec. Dig. §
    6. Witnesses (§ 388) — Impeachment — Preliminary Proof.
    A prior affidavit made by a witness containing matter contrary to his testimony is not admissible to impeach him until a proper predicate has been laid therefor.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1233-1242; Dec. Dig. § 388.]
    Appeal from District Court, Liberty County; L. B. Hightower, Special Judge.
    Trespass to try title by F. H. Morgan against Mrs. George A. Fleming. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    H. E. Marshall, for appellant. Stevens & Pickett, for appellee.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       Writ of error denied by Supreme Court.
    
   REESE, J.

This is a suit in trespass to try title instituted by F. H. Morgan against Mrs. George A. Armstrong. Pending the suit defendant intermarried with Fleming. A' trial with a jury resulted in a verdict and judgment in favor of defendant, from which the plaintiff appeals.

The land in controversy is a tract of 400% acres, part of a tract of 1,040 acres in the name of F. M. Gardner, and was public free school land, both parties claiming as purchasers from the state, appellee by virtue of an application and award by the Commissioner of the General Land Office and appellant by virtue of an application to purchase as an actual settler, and compliance with the law, although his application was refused by the land commissioner.

The facts with reference to said applications, so far as material, are as follows:

Previous to either application, one C. C. Bronson had purchased from the state 640 acres on the north part of said survey, which was a long and irregularly shaped survey something like this:

Previous to appellee’s purchase, 400% acres off the south part of the survey had been sold by the state to one Stegall as an actual settler, who had sold to one Stegner, and this purchase had been forfeited for abandonment. Stegall had built a house, but it appears that this house was not in fact on the land sold to him. On April 23, 1902, appellee made application to purchase 600 acres on the Gardner as an actual settler. This 600 acres included the Stegall house. The application was refused. On April 7,1903, appellee made another application for 400% acres on the south part of the survey as an actual settler, which was approved and the land awarded to her. To qualify as an actual settler, she took up her residence in the Stegall house. This house was in fact some 600 or 700 yards from the land purchased. On July 18th appellee took up her residence as an actual settler on the 400% acres. On June 11, 1903, appellant made an application to purchase as an actual settler complying with the law so as to entitle him to the land, unless the previous sale to ap-pellee stood. The land commissioner refused this application, and appellant brought this suit. Appellee defends her title and right on the ground that she in good faith believed that the Stegall house in which she took up her residence was on the land which had been awarded to her, and that her mistake was an honest and excusable one, and that she moved on the land within a reasonable time after she discovered her mistake, bringing her within the protection of the principle laid down in Hall v. White, 94 Tex. 452, 61 S. W. 385; Chancy v. State, 84 Tex. 529, 19 S. W. 710; Thompson v. Hubbard, 22 Tex. Civ. App. 101, 53 S. W. 841, and other cases.

It is the contention of appellant that ap-pellee either knew, or by the exercise of ordinary care could have discovered, her mistake when she made her settlement, and is not entitled to protection on the ground of honest mistake, made in good faith. Upon this issue the case turned. The evidence was conflicting. The issue was fairly presented to the jury by a proper charge, and they found for appellee. Substantially all of the evidence is upon this issue. We cannot undertake to set it out here, nor are we required to do so. We content ourselves with finding as a conclusion of fact that the evidence is sufficient to support the verdict of the jury.

This is the second appeal of this case. On the former appeal, which is reported in 102 S. W. 1164, it was held by the Court of Civil Appeals of the Fourth District that the evidence presented by the record on that appeal justified a finding for appellee Fleming, in whose favor there was a verdict and judgment on the former trial also. It is stated in the brief of appellee that the evidence on both trials was the same, and the doctrine of stare decisis is invoked. The correctness of this statement is challenged by appellant. We have no means of determining the question, which is unimportant, since we have arrived at the same conclusion on this appeal as the Court of Civil Appeals of the Fourth District did on the former appeal. We will add, however, that appellant undertakes to point out in his brief wherein the evidence differs in the two cases, and it appears therefrom, if there be no other difference than that thus pointed out, such difference cannot properly affect our conclusions on this issue, nor require a different conclusion on this appeal from that arrived at on the former appeal.

This finding necessarily disposes of the first assignment of error, which is that the court erred in refusing the motion for a new trial because the verdict is against the preponderance of the evidence, and wholly contrary thereto, and the sixth assignment, that the court erred in refusing to charge the jury peremptorily to return a verdict for the plaintiff. These assignments are therefore overruled, with the several propositions thereunder.

By the second assignment of error appellant complains of the refusal of a requested instruction that the defendant was bound to take notice that the Stegall land was the 400% acres off the south end of the F. M. Gardner survey, and, if the jury believed that the defendant knew or by the use of ordinary care could have learned that the Stegall house was not on the 400% acres, to find for plaintiff. The first part of this charge was entirely inconsequential. There was no issue made of the fact that the Stegall 400% acres was off the south end of the Gardner, or appellee’s knowledge of this fact. Full knowledge of this fact was only one circumstance tending to support the affirmative of the issue referred to in the latter part of the charge; that is, that appellee knew, or by the exercise of ordinary care could have known,' that the Stegall house was not on the land applied for by her. The latter portion of the requested charge was amply covered by the general charge. There was no error in refusing the charge requested.-

The third assignment is without merit. In place of the requested instruction the court gave the following charge in addition to the general charge: “If you find and believe from the evidence that the defendant had knowledge of such facts and circumstances that would have prevented a person of ordinary prudence from making the mistake (if there was such mistake) in occupying the Stegall house, then the defendant was not an .actual settler in good faith.” This was sufficient.

The requested charge referred to in the fifth assignment was properly refused. It ignores the question of mistake made in good faith, the real issue in the case. The requested charge, the refusal of which is complained of in the seventh assignment of error, would, if given, have been a mere reiteration of the general charge, .and the refusal to give it was not error. Appellant relied in part upon notice conveyed by Bronson to AV. P. Armstrong, claimed to bave been tbe agent of appellee, to rebut tbe claim of bonest mistake on tbe part of ap-pellee, and requested a charge instructing tbe jury as to tbe effect of notice to Armstrong, wbicb was refused. It fully appeared from tbe testimony of appellee berself that Bronson bad given to ber in person tbe same information; bence it became immaterial to consider tbe effect of sucb information to ber agent, as notice to ber, on tbe issue of good faitb. Tbe refusal to give tbe requested charge was not error. Tbe question is presented by tbe fourth assignment of error.

Tbe issue being one of good faitb ,and honest mistake on tbe part of appellee, it was admissible for ber to show tbe information upon which she acted, and any other circumstance tending to show what care was exercised by ber to determine whether ber settlement was upon the land applied for. __ It was not a question of the truth of tbe Information given, but ber good faitb and proper care in acting upon the same, which was a question for the jury. AVhat information she received from ber brother or any one else reasonably calculated to induce ber to believe that ber settlement was on tbe land applied for was admissible. AVhether sbe should bave relied on it was a question for tbe jury. Tbe eighth assignment of error presenting this question is overruled. Greenleaf, Ev. §§ 100, 101; 3 Wigmore, Ev. § 1789; McDonald v. Hanks, 113 S. W. 608.

Tbe affidavit made by Bronson, tbe admission of wbicb, over appellant’s objection, is made the basis of tbe ninth assignment of error, was admissible, if for no other purpose, to contradict or impeach Bronson, who bad testified to facts contrary to the statements of tbe affidavit. No objection was made that no predicate bad been laid for its admission for this purpose. Tbe assignment and propositions thereunder are overruled.

Tbe testimony of J. J. Terrell, Commissioner of tbe General Land Office, admitted over tbe objections of appellant, and referred to in the tenth assignment of error, was admissible on tbe issue of bonest mistake, made in good faith, on the part of appellee.

Tbe eleventh assignment of error is without merit. There was no predicate laid for tbe introduction of tbe affidavit of AV. D. Kay offered for tbe purpose of impeaching him upon which ground appellee objected to its introduction. There was no error in sustaining tbe objection.

This disposes of all of tbe assignments of error. Tbe case was fairly presented to tbe jury by a proper charge. Tbe evidence is sufficient to support tbe verdict No reversible error is shown, and tbe judgment is affirmed.

Affirmed.  