On Rehearing.
In passing .upon appellants’ motion .for rehearing it is deemed well to completely restate the rulings upon which the various contentions are overruled and the judgment affirmed.
The special issues and court’s charge in connection therewith are as follows:
“Question No. 1. Did the defendant W. P. Paschal fail to become an actual settler on section 28 within ninety days after the 16th day of June, 1906, the date of the award to him? Answer this question ‘Tes’ or ‘No.’
“In this connection you are instructed to answer the same ‘Yes’ if you believe the affirmative thereof from a preponderance of the evidence; otherwise to answer same ‘No.’ By ‘preponderance of the evidence’ is meant the greater weight of credible testimony.
“ ‘An actual settler,’ as used in the issue submitted, may be defined as one who actually occupies and settles upon land intending to make it his home.
“Question No. 2. Do you find from a preponderance of the evidence that W. P. Paschal failed to reside continuously upon section 28 as his home during the period elapsing between the date of his settlement on said section, if he did settle thereon, and the 24th day of May, 1909, the date of the forfeiture by the land commissioner? Answer this question ‘Yes’ or ‘No.’
“In answering this question you are instructed 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, provided that while absent the intention is maintained to return to the land for a home.
“In connection with question No. 2, you are instructed that in determining whether W. P. Paschal did or did not continuously reside upon said section 28, that you will not consider the fact that on the 24th day of May, 1909, the commissioner of the general land office canceled the purchase of the said W. P. Paschal to the land in controversy.”
Both of these questions were answered “Yes.” No special charges or issues were requested by appellants, and no objections wére made to the charge. A third question submitted related to rental values.
The first five assignments question the sufficiency of the evidence to support the findings of the jury upon issues 1 and 2. These are overruled for the reason that, in our opinion, the evidence is sufficient. The evidence supporting the same is set out in the original opinion.
The sixth assignment, complaining of the overruling of the motion for a new trial on account of newly discovered evidence in the form of a letter written by the witness Quinn to Nations, dated subsequent to the trial, is overruled for the reason stated in the original opinion.
The seventh assignment, which is submitted as a proposition, reads:
“Because the district judge, before whom this caso was tried, to wit, P. R. Price, in overruling defendant’s motion to set aside the findings of the jury in the said cause, made the following statement:
“ ‘That J. H. Nations had put the windmill on there; he had put the tank on there; that he had put the house on there; that Paschal was the man that received forty dollars a month; that he had leased for the space of fifteen years; he had testified that for these improvements he owed J. H. 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 for J. H. Nations; that the story was so unusual as might warrant them in disbelieving his entire testimony.’ This was error because the court predicates his ruling on the question of intention and good faith, and not on the preponderance of the testimony as to settlement or as to occupancy, as shown by bill of exception No. 1.
“The question of intention and good faith on the part of W. P. Paschal in the settlement and occupancy of the land in controversy was not'a material legal issue in the case, and it is reversible error for the trial court to overrule and refuse to grant a new trial in consideration of that issue, when duly presented by the party injured on that ground.”
This is overruled for the following reasons:
First. The judgment in this case is based on the jury’s findings, and not upon remarks by the court in overruling the motion for new trial. The views expressed by the court in overruling the motion could have had *748no possible influence upon tbie verdict of the jury.
Second. So far as the bill of exceptions discloses these were isolated remarks of the court, and there is nothing to indicate that his action in overruling the motion was predicated solely upon the theory indicated in appellant’s contention. The record is insufficient to advise this court of all that was in the mind of the trial court when he overruled appellant’s motion, and which operated to induce such action upon his part.
The eighth assignment, and its sole supporting proposition, is 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 commissioner 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 ^ear 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 case in favor of said plaintiff, and should be set aside and held for naught.”
First proposition under eighth assignment of error:
“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.”
The finding of the jury upon the issue of settlement within 90 days may he entirely disregarded, and the judgment nevertheless must be affirmed upon the jury’s second finding.
What has been said disposes of every ground of error which is* properly assigned, but in a lengthy argument appended to their brief appellants present additional grounds upon which a reversal is sought; and, in order to avoid the consequence resulting from a failure to properly assign the same, they are here presented as fundamental error. Many of the propositions asserted as fundamental error are academic, and as abstract propositions of law are correct. Some of them relate to the first issue, and we will not discuss those, for, as held above, the first issue may be disregarded, and the judgment nevertheless must be upheld on the finding in response to the second question.
The substance of the first contention is that this suit cannot be maintained by Miller because the land commissioner in his forfeiture of the Paschal purchase did not comply with the law, in that the indorsement of forfeiture was made upon Paschal’s application instead of his obligation. Further, it was not shown that the commissioner made, or caused to be made, an entry of the forfeiture on the account of Paschal in the land office as required by the ruling in Chambers v. Robison, 107 Tex. 315, 179 S. W. 123. Further, it was not shown that the commissioner had mailed notice of the forfeiture to the county clerk.
The statement of facts contains a written agreement signed by counsel for the respective parties, the manifest purpose of which, we think, was to admit the regularity of all documentary evidence of title of both parties, and that it was intended to thereby concede the sufficiency of all such evidence of title, and dispense with its formal proof, and eliminate all questions eScept the issues of fact relative to settlement and occupancy. The agreement recites that it was to obviate the necessity of making proof; that on May 26, 1909, Mrs. Miller, in legal form and as required by law, applied to purchase the land, describing same; that the land was duly and legally awarded to her by the commissioner on June 10, 1909; that her purchase was upon due and legal classification, appraisement, and advertisement; that the award to her was now in good standing in the land office and was being recognized by that office; that ever since the award to plaintiff here the plaintiff has been recognized by the commissioner of the land office as being the owner of the land in controversy, and that, since the time of the cancellation of the award to Paschal, he (Paschal) has not-been recognized as the owner thereof in the land office; that on May 18, 1906, Paschal applied to purchase the land, describing same:
■ “Said applications being all in due and legal form and duly executed, except that the application to purchase said section 28, township 1, block 81, by said W. P. Paschal, stated both that he was an actual settler upon and had settled upon said section, and that he would do so within ninety,days, said application to purihasc said section being hereto attached; that at the time said Paschal applied to purchase on the 18th day of May, 1906, said above surveys had been duly and legally classified, appraised, and *749advertised; that afterwards, on June 26, 1906, all of the above-named lands were awarded by the commissioner of the land office to W. P. Paschal, by virtue of his application to purchase ; that attached hereto is "affidavit of settlement made by said Paschal, which may be introduced in evidence, the facts therein stated not being admitted; that on May 24, 1909, J. T. Robison, commissioner of the land office, on each application of purchase made by said Paschal, indorsed the following, ‘Land forfeited for failure to reside thereon as required by law;’ that, upon the forfeiture of said land so sold to Paschal, the same were awarded to Mrs. I. D. Miller, after Ate and legal advertisement and appraisement, and notice of her filings to the county clerh of El Paso county, Temas, and all prerequisites of sale were followed by the commissioner of the land office and by her and' by both were complied xoith.”
[7] The certified copy of the application to purchase section 28 (Paschal’s home section) attached to the agreement shows that the indorsement of the land commissioner as follows: “Land forfeited for failure to reside thereon as required by law. 5/24/09. J. T. Robison, Comr.”—was made on the obligation, and not on the application, as stated in the body of the agreement. Considering the agreement as a whole, we think, and so hold, that a forfeiture was made by the commissioner in the manner prescribed by law, and, in any event, that appellants upon this record cannot for the first time, in this court question the sufficiency of his procedure. In this connection we desire to say, further, that the regularity of the procedure of the' comrdissioner in forfeiting is pertinent only in relation to the one-year statute of limitation. Rev. St. arts. 5458, 5459. This statute was construed by Associate Judge Brown in Slaughter v. Terrell, 100 Tes. 600, 102 S. W. 399, where this language was used:
“In order to ascertain what the Legislature intended by the enactment of this law we must consider the evil that existed and determine what the remedy was to be. Under the law as it previously existed, purchasers of school lands were liable to have their titles attacked by third persons who desire to purchase the land, and such persons might call in question the qualification of the purchaser as well as the performance of conditions prescribed by law; for example, that when the purchase was made the purchaser did not actually reside upon the land, or that he did not intend to make it his home, and thus, although the state recognized his right, the purchaser was constantly exposed to such attacks. This rendered such titles uncertain, and to remedy that evil the Legislature enacted the law now under consideration, which requires that any person who desires to purchase land theretofore purchased by another shall bring his suit to set aside the former purchase within twelve months of the award of it or he will be barred. Clearly this applies only to cases where the state recognizes the validity of the purchase being attacked,* and does not apply to a case like the present, where there has been a forfeiture of the former purchase by the land commissioner, and the land again put upon the market. There is no necessity for a suit by a purchaser of forfeited land; indeed, to so hold would be to say that the commissioner had the power to declare the forfeiture, although the award may have been made many years before that time, and the power to sell the land, but that, the purchaser at the second sale could not get possession of the land because his suit could not be brought within a year from the award to the first purchaser which had been forfeited. Such an absurd result is a sufficient answer to the contention for that construction.”
[8] Under the foregoing ruling it is clear that the fact of forfeiture is material to the right of Miller to prosecute his suit only as relieving him from being barred within the year. Now, the agreement on its face shows that the • commissioner has in fact undertaken to forfeit the Paschal purchase; that the award to Miller is the one recognized by the land office; that the commissioner recognizes Miller as the owner, and since the cancellation has refused to recognize Paschal. These facts show that the commissioner has undertaken to forfeit and that the state refuses to recognize the validity of the Paschal purchase, and such purchase is not in good standing in the land office, and under the ruling in Slaughter v. Terrell, this relieves Miller from the bar of the one-year statute.
As to the contention that Miller failed to show entry of forfeiture upon the Paschal account in the land office and notice to the county clerk, this likewise is disposed of by the views expressed above. Furthermore, we have italicized portions of the agreement made by the parties which sufficiently show that proof of these facts was waived.
[9] Another error urged as fundamental, is that the definitions given by the court in its charge of “actual settler” and “continuous residence” are erroneous. If these definitions were incorrect, which is not conceded, the error therein was waived by appellants’ failure to make any objection thereto at the proper time. Acts 1913, c. 59, p. 113.
We see no occasion to discuss the rule that no one but the state can raise the question of collusion, if any, between Paschal and Nations. The court submitted no issue in that respect. If, as appellants assert, collusion was injected by the definitions of “actual settler” and “continuous residence,” then such error arose in the charge, and by their failure to object to the definitions appellants waived the same.
Upon the views expressed we are of opinion that none of the contentions made by appellants in their original brief or tlieir motion for rehearing are well taken'. We *750therefore adhere to the order of affirmance and overrule the motion.
If appellants desire to file a second motion for rehearing, 15 days are granted in which same may be filed.