In 1883 R.J. Wortham, with appellant, his wife, settled on a part of the Grimes County school land league number 148, and in the following year had 160 acres surveyed, including the 54 acres in controversy. This 54 acres, however, was in the next succeeding year sold by him to one Jasper Millman, without the joinder of his wife in the conveyance. He made no further claim to the land sold to Millman, but in 1888 purchased from Mrs. C.H.A. Baker 67 acres of the land settled on, so as to include his improvements, excluding the land in controversy, this being all he was able to pay for. This league, with two others, was sold by Grimes County in 1886 to Baker, Buffington McDaniels at $2.45 per acre, who conveyed the same to Mrs. C.H.A. Baker, who conveyed the land in dispute to appellee. This conveyance was made by Mrs. Baker after she recovered the land in controversy from Millman. Baker v. Millman, 77 Tex. 46.
It was proven on the trial, that at the time of the sale to Baker, Buffington McDaniels, the land in controversy was worth $10 per acre, estimating the value of the entire tract sold by Grimes County at $2.45 per acre. R.J. Wortham died in 1890, without having taken any steps to acquire title to said 54 acres, and up to the institution of this suit no steps had been taken by his widow, Mrs. M.A. Wortham. She did not offer on the trial, or at any other time, to purchase the land at any other price than $2.45 per acre; but rests her claim solely upon the proposition that by the aforesaid actual settlement she acquired the right to purchase as a homestead the 160 acres of land originally settled on, at price per acre fixed by the Commissioners Court of Grimes County in the sale to Baker, Buffington McDaniels for the entire league, without reference to the relative value of this tract to said entire league as fixed by said county.
That the legal title was in appellee can not be disputed; and no such equity was shown by appellant as would defeat a recovery on the legal title. She should have taken some steps, or at least offered, to purchase at the price fixed by the relative value of the land in dispute to the whole tract, taking the price fixed on the whole tract as a basis of value. Ward v. Worsham, 78 Tex. 180 [78 Tex. 180]. In order to acquire a homestead, it was necessary to acquire some sort of title to the land; and as a failure to do this is her own fault or misfortune, her defense falls for want of equity.
The judgment will therefore be affirmed.
Affirmed. *Page 20