
    ERICKSEN v. McWHORTER.
    (Court of Civil Appeals of Texas.
    Oct. 15, 1910.)
    1. Public Lands (§ 173) — School Lands— Acquisition.
    A purchaser of state school lands may not fulfill the conditions of settlement and occupancy by proxy.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    2. Public Lands (§ 173) — School Lands^-Contbact of Purchase — Effect.
    A contract by a husband for the purchase of state school land is a community obligation through which the wife acquires a half interest in the land, and she, as well as the husband, is a purchaser within the statute and in determining whether the land has been settled on and occupied in accordance with the law, the joint acts of the husband and wife must be considered.
    [Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 173.]
    3. Public Lands (§ 173) — School Lands— Contract of Purchase — Effect.
    Where, in a suit involving conflicting claims to state school land, the evidence showed that plaintiff, a married man and the head of a family, purchased the land; that he in person, at or before the purchase, went on the land, and that subsequently he was _ there one or more times assisting in making improvements; that the wife, excepting temporary absences, continuously occupied the land, making improvements thereon, and that the husband remained away the greater part of the time pursuing his business; that he purchased the land for a home, and that his business was necessary to secure money with which to pay his indebtedness on the land — a charge that if plaintiff did not actually and in person settle on the land he could not recover, and that occupancy by one’s wife without his presence was not sufli-cient, was erroneous as unduly emphasizing the necessity of plaintiff’s personal occupancy, and in excluding a consideration of the acts of the wife.
    [Ed. Note. — For other cases, see Public Lands, Dec. Dig. § 173.]
    Appeal from District Court, Midland County; S. J. Isaacks, Judge.
    Action by Ed Ericksen against S. D. Mc-Whorter. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    A. S. Hawkins, for appellant. Jno. B. Howard and L. A. Dale, for appellee.
    
      
       For other cases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   CONNER, C. J.

Appellant as plaintiff and appellee as defendant presented to the court below conflicting claims to sections 11, 12, 15, and 16, in block A, of the public free school lands in Midland county. It was agreed that appellant by regular transfers and applications duly filed and accepted by the Land Office became the owner of the land in controversy as a substitute purchaser from the state of Texas about the 3d day of March, 1908, and that thereafter the Commissioner of the General Land Office canceled or attempted to cancel appellant’s purchase on the ground of a failure on his part to occupy and improve the lands as required by law, the Commissioner thereafter awarding the lands to appel-lee. This appeal is from a judgment in ap-pellee’s favor. The only contested issue on the trial was that of settlement and continued occupancy which was thus submitted by the court’s charge, viz.:

“(5) If you find and believe from the evidence that the plaintiff did not actually and in person and in good faith settle on some portion of said land on the date of his purchase of same, or prior thereto, then you will find for the defendant.

“(6) If you find and 'believe from the evidence that the said Ed Ericksen did settle on the land in controversy at the date or before the purchase of same by him, but further find that the said Ed Ericksen afterward abandoned same or did not continue to reside upon said land in good faith and make his home thereon until the date of the cancellation of same by the Commissioner of the General Land Office, then you will find for the defendant.

“(7) By the term ‘actual settler,’ as used herein, is meant one who actually, in person and in good faith, settled upon and lived upon the land, for the purpose of making same his home, and. such residence or occupancy must be continuous (except the temporary absence as hereinafter explained), and in person. Occupancy by one’s wife without his presence is not sufficient.”

While it is undoubtedly true that a purchaser of state school lands may not fulfill the conditions of settlement and occupancy by proxy, we think as applied to the facts of this case the court’s charge was restrictive of appellant’s right and upon the weight of the testimony, particularly in that clause wherein the jury were instructed that “Occupancy by one’s wife without his presence is not sufficient.” It is undisputed that appellant was a married man and the head of a family consisting of himself, wife, and several children, and he and his wife both testified to the effect that at or before the purchase under consideration appellant in person went upon the land, and thereafter was there one or more times and assisted in making certain improvements. The evidence is also almost, if not quite, undisputed that his wife, with certain temporary absences not assailed, continuously occupied the land in controversy, building the home, erecting fences, ploughing the ground, etc. True, there was evidence showing that appellant, as had been agreed upon between himself and wife, remained a much greater part of the time from the date of his purchase in the town of Midland pursuing his business as a blacksmith, but he testified that he had no home other than the one in controversy; that he purchased it for a home so intending it; that there was nothing upon the land that he could do; and that such absence was necessary in order to secure money with which to pay his indebtedness thereon. In this condition of the evidence we think the' ■court erred in unduly emphasizing the necessity of appellant’s personal occupancy and in excluding a consideration of the acts of the wife. The wife, at the time of appellant’s purchase, was the connubial partner, and the appellant’s contract with the state was a community obligation, through which the wife acquired a one-half interest in the land, and she, as well as the husband, was a “purchaser” within the meaning of the law, as has been recently decided by our Supreme Court in the case of Leaverton v. Robison, 120 S. W. 169. Regardless, therefore, of the husband’s absence, it may be well doubted whether the Commissioner of the General Land Office had the power to cancel the purchase and to again place the land upon the market subject to appellee’s purchase, or attempted purchase, during the wife’s good-faith settlement and continued occupancy and improvement. But aside from this question, which we need not now decide, it must certainly be true that the jury would have the right to look to the joint acts of appellant and his wife in determining whether the land in controversy in fact had been settled upon and occupied in accordance with the spirit of the law so requiring. See Willingham v. Floyd, 32 Tex. Civ. App. 161, 73 S. W. 831.

We conclude that the court erred in his charge as indicated, and that the judgment must be reversed and the cause remanded.  