This suit was originally filed by appellee, F. P. Miller, and Lis wife, I. D. Miller-, on the 7th day of ¡July, 1910. On January 24, 1918, appellee, Miller, filed his first amended original petition, individually and as community survivor and as community administrator of the estate of himself and his deceased wife, upon which amended petition this case was tried. The action is one in trespass to try title brought by Miller to recover six sections of land, originally public free school lands, from W. P. Paschal and J. H. Nations, a lessee of Paschal. On May 18, 1906, Paschal applied to purchase said lands, and made the formal affidavit that he would settle thereon within 90 days. On June 26, 1906, all of said lands were duly awarded to Paschal by the land commissioner. On May 24,1909, the commissioner on each of Paschal’s applications entered, “Land forfeited for failure to reside thereon as required by law.” On May 26, 1909, Mrs. I. D. Miller applied to purchase said land, and on June 10, 1909, same was awarded to her.
Paschal’s purchase of the land, barring the issues of fact submitted to the jury tas to settlement and residence thereon, A, was agreed was in formal compliance the law, the required payments on his obligation were duly made up to the time of the commissioner’s forfeiture of his purchase, and have since been duly tendered. He was in possession of the lands at the time of the forfeiture. Mrs. Miller also, after the lands were awarded to her, fully complied with the law in the purchase of the lands, the settlements thereon, and in making the payments thereon up to the time of her death, and that F. P. Miller' since her death has complied with the law in every particular. By an agreement in writing betweén the parties hereto, and introduced in evidence, every fact, apparently, affecting the title of either Paschal or Miller, was agreed to, to obviate the necessity of making proof thereof.
The case was tried with the aid of a jury, and on the jury’s findings on special issues presented judgment was rendered for ap-pellee, Miller, for the lands in controversy, and for the sum of $144.87 as rents, with interest.
In answer to the two special issues of fact submitted to the jury, and the only two on which a controversy is presented here, without quoting the verbiage of the charge and findings, the jury found: First, that Paschal failed to become an actual settler on. section 28 (one of the sections in controversy and the one claimed as the home section) within 90 days after the 16th day of June, 1906, the date of the award of the lands to him; second, that Paschal failed to reside continuously upon said section 28 as his home during the period elapsing between the date of his settlement on said section (28), if he did settle thereon, and the 24th day of May, 1909, the date of the forfeiture of the land to him by the land commissioner.
As explanatory of expressions used in the issues submitted, the court in the charge defined ■ “an actual settler” to be one who actually occupies and settles upon land intending to make it his home, and that by “residing continuously” is meant a substantial, unbroken residence upon the land as a home; but the continuity of one’s residence is not broken by mere temporary absence from the land for short periods of time for the purpose of business or pleasure, providing that while absent the intention is maintained to return to the land as a home.
Appellants in the first five assignments of error insist that the verdic-t of the jury in the two findings of fact is clearly and palpably against the evidence, and that when such is the case, on special issues presented, it is reversible error for the trial court to overrule and refuse to grant a new trial based on that ground. The first three assignments have reference to the jury’s findings on the first issue (settlement within the 90 days), and the fourth and fifth have reference to the jury’s finding on the second issue (the three-years residence). The several assignments are each followed by propositioiis each using different forms of expression; but, as we view them, they all accentuate tlie one contention made under said assignments, that the evidence so clearly and unmistakably preponderates in favor of appellants on the issues tendered by the court as to show manifest injustice to appellants, and that it is error to refuse to grant a motion for a new trial based on such grounds. We will consider them together.
[1] We are referred by appellants and by appellee to a large number of cases relating to and stating the rule controlling trial and ■appellate courts in passing upon the question of the sufficiency of the evidence to sustain the verdict, or the finding of a jury on special issues, as presented in the assignments. Of the number of cases reviewed we have concluded that the Supreme Court in Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 88, 37 S. W. 319, clearly and succinctly states the governing rule applicable to the contention made here that we need refer to that one case only. In that case Judge Brown said a trial court is not justified in taking from the jury a question of fact ex*744cept in case üie evidence is such that there is no issue made for the jury to determine. It is there held that a different rule applies to the granting of new trials by tidal courts and Courts of Civil Appeals. The rule, then, is stated to be that, “although there may be sufficient evidence in a case * * * to submit it to the jury, yet, if the verdict rendered thereon is against the preponderance of the evidence to that degree which shows that manifest injustice has been done, the trial court may and should grant a new trial. The judge should not invade the province of the jury, and take from it the decision of the question which properly belongs to it; neither should he abdicate the functions of his office, and permit the prerogative of the jury to be perverted to the accomplishment of wrong.” The rule, as we understand it, does not authorize trial nor appellate courts to set aside verdicts of juries, merely because the evidence is conflicting, nor where the verdict seems to us to be against the great preponderance of the evidence, nor when the verdict does not appear to be right; but, as said by the Supreme Court in the ease from which we have quoted to justify the setting aside a verdict it must be against the preponderance of the evidence to the decree which shows that manifest injustice has been done; that is, it must be affirmatively wrong.
In Stroud v. Springfield, 28 Tex. 650, after commenting on the evidence, and after stating there was great conflict in the evidence, and that the court was of the opinion that the jury found against the weight of the evidence, the Supreme Court said:
“Prom having seen the witnesses, and heard their testimony, and observed their manner of testifying, they wore in a much better position to judge of the weight and degree of credit to be attached to their statements than we could possibly be by an inspection of the record. * ⅜ ⅜ It is well settled in the adjudications of this court that a verdict will not be disturbed because a jury may have erred. In order to justify this court in setting aside such a verdict, it is not sufficient that it does not appear clearly to be right; it must appear to be clearly wrong.”
The evidence covers about 75 pages of the record, entirely too lengthy to be repeated here. Now, what facts were submitted to the jury for them to determine from the evidence, briefly, in the first issue, (a) actual settlement within 90 days after June 16, 1906; (b) purpose of settlement to make it his home; second issue, (a) continuous residence for three consecutive years after actual settlement; (b) residence as his home. The actual settlement must necessarily have been made on section 28, and the continuous residence thereon commenced on or about the 15th day of September, 1906.
[2] We will briefly state a few features of the evidence: Paschal testified, and his affidavit of settlement states, that he made his actual settlement on the land (section 28, home section) on the 3d day of September, 1906, and we will consider his residence as beginning at that time. At that time, and for some time previous, and during the years following, he -was employed by appellant Nations as ranch foreman, and receiving $40 per month. He testified:
“Mr. Patterson made out my application for the purchase of the land. He is Mr. Nations’ manager. When I took that land up, I leased it to Mr. Nations for fifteen years.”
The lease contract is not found in the record, and the evidence does not show the purpose of the lease, its character, conditions, qualifications, or reservations of rights of use for residence to Paschal, if any there were. Much evidence was offered to show the times when and the values of certain improvements, such as a house, tank, and windmills, were put on the property; but, no evidence having been offered to show the terms of the lease contract, we do not know upon whom, under the lease, devolved the duty to make such improvements. Further, without quoting the evidence at this time, we think it clearly appears therefrom that about all of the improvements, such as the house, tank, windmill, etc., put upon the land, were either furnished or directly paid for by Mr. Nations ; and, while- Paschal said the things w'ere charged up to him by Nations, the question of his indebtedness to Nations for them, and whether Paschal put the improvements/on the land, or whether Nations did so fojAis employés to live in, as testified to by <⅜§⅛, and hereafter stated, would be for the jury to determine. It seems to us that the lease of the lands to Nations, taken in connection with the other evidence, tends to support the finding of the jury that Paschal, if he was on the land as claimed by him, was not there for himself, but rather that he was on the land for his employer, in the discharge of his duties to his employer. If he was on the land for another and not residing on the land as his home, the finding of the jury on the issue should be sustained. Numerically mpre witnesses testified in favor of appellants than appellee, but, when analyzed, their evidence shows interest, relationship, bias, and much inconsistency in the facts detailed, all of which were within the observation of the jury and the trial judge. Appellants do not point out, by brief or oral argument, any fact essential to appellee’s cause of action upon which evidence was not offered; but the contention is made that the evidence so greatly preponderates in appellant’s favor that manifest injustice is shown in overruling the motion for new trial. It is undisputed that Pat Quinn, appellee’s principal witness, was working for Mr. Nations in September, 1906, and months previous *745thereto, and that he was present and one of the parties who built the tie shack on section 28, the home section claimed by Paschal, and, at least, had an opportunity to know the facts to which he testified. He testified to having hauled the material to build the house, referred to as the tie shack, put upon section 28; assisted in the work then being done on that section; that he stayed on section 28 until the 28th of September, 1906; that during July, August, and September of 1906 he, with others, hauled a derrick up there, a windmill, and started a well; that Paschal did not give instructions as to where the derrick should be placed or the well sunk; that Nations, Patterson (Nations’ manager), Paschal, and Shanks and himself were present and that Nations gave the instructions as to where to put the well, and, returning later, instructed that the well rig be moved 20 or 25 feet, saying, “Boys, it ain’t on my land,” and that the well was moved as he instructed. Quinn testified:
“From the time I went there until I left there on September 28th, in absolutely no respect did Pink Paschal (W. P. Paschal) live upon, occupy, or reside there; he lived at Helm Ño. 1, and had his family there. * * * I left No. 28, on September 28th, and went down to block No. 80, about three miles south of there, and stayed there about four years. During that time I had occasion to go back on section 28 regularly. I ride that country all the time. In the fall of'1906 no one was living at the tie shack on section 28; it was vacant. During the year 1907 a party named Seegring was living there. During the year 190S I didn’t see anybody there. I don’t know that Paschal ever went there to live in that .tie shack; I never saw him there. He took his mteals at Helm No. 1, and in El Paso. * ⅜ * During 1906 and 1907 I had occasion to go to that tie shack. The door was always open; it looked like the cattle had stood round in there; I went inside. I was riding that country pretty near every day. During that time I would always see Pink Paschal either on the road or at Helm No. 1. * * * After I left the place, on September 28, 1906, I am able to swear that Paschal did not live there. He never made {iis home there. He never had his family there. * * * I built the house. It was a habitable house. It was such a house as a man could make a home in. * * * The tie house was built for a home for the employés of Nations. Paschal was employed by Nations at Helm No. 1, as a foreman. His business was around the pasture, and No. 2 (the tie shack) was in the pasture.”
We have stated only a brief portion of Quinn’s evidence, as it is principally upon bis evidence appellee relies to sustain the verdict of the jury. Much of what he said, especially as to Paschal’s not being, on the land, is contradicted by Paschal and other witnesses. To us it is evident that, if what Quinn said was true, Paschal did not settle upon the land as required by law, nor did he reside upon the land as required by law. Nations did not testify.
[3,4] Much of appellant’s evidence, especially on matters of dates, and Paschal’s residence on the land, is conflicting, uncertain, and cannot be harmonized. We need not quote the evidences to show its inconsistencies. Appellant’s sixth assignment is as follows:
“As evidence of the prejudice of Pat J. Quinn, the only witness introduced by plaintiff, which prejudice was not known to said defendant, W. P. Paschal, at the time of the trial of said cause, and was only learned by and through a letter (as appears through the affidavit of J. H. Nations filed in this cause on his motion for a now trial) delivered to defendant, J. H. Nations, on the-day of February,' 1918, by said Pat J. Quinn, a true and correct copy of the original is hereto attached, marked ‘Exhibit A,’ and prayed to be taken and considered as a part of this motion. The original letter is in the hands of the attorneys for the defendants, and can be exhibited to the court or attorneys for plaintiff on request.”
This ground of the motion is sworn to by Paschal. We have not found in the record the affidavit of Mr. Nations, referred to in the assignment. We do find a long, rambling, and almost unintelligible letter, dateii February 1, 1918, addressed to Mr. J. H. Nations, and signed Pat J. Quinn. The ground of this assignment is prejudice of the witness, and the evidence desired goes tQ his credibility. It seems to be firmly settled as the rule in this state that newly discovered evidence (if the evidence here is newly discovered), when its object is to impeach the credit of the witness, a new trial will not be granted on that ground. The granting or refusal of a new trial on such ground also is largely in the discretion of the trial judge. The cases to which we are referred by appellee sustain this view. Jones Estate v. Neal, 44 Tex. Civ. App. 412, 98 S. W. 420; Houston City Street Ry. Co., v. Sciacca, 80 Tex. 356, 16 S. W. 31; Scranton v. Tilley, 16 Tex. 193; H. & T. C. Ry. Co., v. Forsyth, 49 Tex. 171; Moore v. Temple Grocer Co., 43 S. W. 845.
[5] By the seventh assignment oomplaint is made because the trial judge, Hon. P. R. Price, in overruling the motion for new trial, made the following statement:
“That J. H. Nations had put the windmill on there; he had put the tank on there; and he had put the house on there; that Paschal was the man that received $40 a month; that he had leased for the space of fifteen years; he had testified that for these improvements he owed Nations two thousand dollars; that from these facts the jury might have inferred that he did not settle on it for a home, but settled on it as an employé of J. H. Nations; that the story was so unusual as might warrant them in disbelieving his ^entire testimony.”
*746It is claimed that the court’s ruling on the motion was error because predicated on the question of intention and good faith, and not on the preponderance of the evidence as to settlement or residence on the land. It is asserted that intention and good faith on the part of Paschal in the settlement and residence on the land was not a material issue in the case.
Paschal’s evidence discloses his claim of settlement and residence on the land was in' compliance with the law governing sales of public school lands. His evidence, introduced by appellants, reads in part:
“I reside out here on what is called No. 2, along about Tobin. I resided out there in 1906. The ranch of mine is known as Rauch No. 2. That ranch is my home. It was my home in 1906. * * * I made improvements on that section which I claimed as my home prior to the fall of 1906.”
After a lengthy and detailed statement as to the putting in a well, windmill, the tie house, corrals, at the cost of about $600, he said:
“In September, 1906, I lived on this place of mine called No. 2. I did not own any other home. I claimed this as my home. I lived there in 1907. I never did leave, that place with a view of not returning. * * * I was working for wages then. * * * I leased all this property to Mr. Nations. He was paying me for all the property. * * * I stated that Mr. Nations paid the wages of these men that did the building, and he bought the windmill for me and all these improvements; he charged that up to me ⅜ ⅛ * I have an idea about what I owe him. I cannot tell you exactly; the whole thing comes to a little over two thousand dollars — mighty near.”
The above is but a small portion of the evidence introduced by appellants as showing that Paschal had settled on the land and was residing on the land as a home. The issue as to the purpose of the settlement was clearly made, and we think properly so, and was a material issue in the case. As we. construe the case of Salgado v. Baldwin, 105 Tex. 508, 152 S. W. 165, we do not think we are in conflict with it. The statement of the trial judge does not disclose that his ruling was predicated on the question of 'intention and good faith, as claimed in the assignment, but says:
“Erom these facts [stated more fully in the evidence quoted] the jury might have inferred that he did not settle on it for a home, but settled on it as employs of J. H. Nations.”
The evidence clearly and unmistakably shows that the windmill and the material of the tie house were furnished by Mr. Nations, and with the tank were put on the land by Mr. Nations’ employSs while working for him by the month, he directing the location of the well, and that before September 3, 1906, the date Paschal claimed to settle on the land under his application to purchase, we think the remarks of the trial judge in overruling the motion, nor the ground upon which he based his ruling, are not reversible error.
Appellants’ eighth assignment and its subjoined proposition read as follows:
“Because after the said land in controversy had been awarded to said defendant, W. P. Paschal, on his application to purchase the same, by the commissioners of the general land office of Texas, and after said commissioner had received and accepted and filed the affidavit of settlement made by said defendant, Paschal, and after the said commissioner had received the obligation from the said defendant to the said state for the purchase of said land, and the sum of money’ due the said state from said Paschal as a purchaser of said land, and the said commissioner not having canceled said purchase for a failure by the said Paschal to settle on said land within ninety days after the same had been awarded to him, and more than three years having elapsed after said settlement before this suit was filed, and more than one year having elapsed after the award to plaintiff, Miller, before he filed this suit, plaintiff is estopped from raising in this case the issue that said Paschal did not settle on said land within ninety days after the same was awarded to him as required by law, the first finding of the jury that the defendant personally did fail to settle on said land within ninety days after his said award cannot be considered as a basis for rendering judgment 'in this caso in favor of said plaintiff’ and should be set aside and held for naught.
“Proposition: The issue as -to the settlement on the land in controversy by W. P. Paschal, within ninety days after the same was awarded •to him, can only be considered at the instance of the state and not by plaintiff. It was reversible error for the trial court to overrule and refuse to grant a motion for new trial and enter judgment on said finding of the jury when that said question was duly presented to in said motion by appellants.”
To this it may be replied that the finding of the jury that Paschal did not settle’ upon the land within the 90 days required by law maybe entirely disregarded, but it would not affect Miller’s right to judgment because, in response to the second issue, the jury found that Paschal failed to reside upon the land as a home during the period elapsing between the date of settlement and May 24, 1909, when the land commissioner canceled. Upon this latter finding alone Miller was entitled to judgment.
[6] In the argument subjoined to the eighth assignment there are a number of reasons advanced as ground of reversal, the same being presented as fundamental errors. It is well settled that this court cannot take cognizance of an error not properly assigned, unless it be an error in law apparent on the face of the record, or, as it is usually termed, a fundamental error. Searcy v. Grant, 90 Tex. 97, 37 S. W. 320. Such errors have been several times defined by the Supreme Court *747Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85; Oar v. Davis, 105 Tex. 479, 151 S. W. 794.
We do not regard the reasons advanced by appellant as presenting “fundamental error” within the meaning of that term as it is defined in the cited cases. Not being presented by proper assignments of error, they cannot he considered. Rule 23 (142 S. W. xii); Searcy v. Grant, supra; City of Beaumont v. Master son, 142 S. W. 984.
Lest we be mistaken in our view that the errors now insisted upon are not fundamental, we have considered the same, and reached the conclusion that they present no reversible error.
Considering the record as a whole, it is apparent that no question was raised as to the manner in which the land commissioner made entry of the forfeiture of the Paschal purchase, and that it was the evident purpose of the written stipulation between the parties to eliminate all such questions, and try only the issues oí fact relative to settlement and occupancy, which were regarded and treated by the parties as the controlling questions in the case.
Finding no reversible error, the case is affirmed.
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