21 S.W. 297 | Tex. App. | 1893
This case was decided by the court without a jury, upon an agreed statement of facts. According to this agreed statement, in July, 1886, Grimes County sold and conveyed to Buffington, McDaniel, and Baker her four leagues of school land, and thereafter said Buffington, McDaniel, and Baker conveyed the same to appellant. The Commissioners Court of Grimes County duly advertised said land for sale, and accepted the bid of the aforesaid parties at $2.45 per acre on twenty years time, with interest at the rate of 6 per cent per annum, payable annually in advance, beginning September 1, 1886; and at the July Term, 1886, of the Commissioners Court duly confirmed said sale. These lands were located as the school lands of said county in the year 1852, and patented in the year 1877. The 160 acres tract of land in controversy is a part of the four leagues of school land.
It was admitted that D.G. Ash was in possession of said 160 acres as an actual settler at the time said land was sold by Grimes County, it having been surveyed for him at the time of his settlement; and that he was a married man and had no lands elsewhere, and had made improvements on said lands, consisting of a dug-out and cow lot; and that in December, 1886, he sold the land to appellee, having made a verbal contract for the sale thereof a few days prior to the sale of Grimes County, but no money was paid for his claim until December, 1886. It was admitted that appellee was a single man, without any other land, and that he had never lived on the land in controversy. The improvements were valued at $370. It was also admitted that Ash made a tender to Grimes County, and to Buffington, McDaniel, and Baker, in accordance with the terms upon which they purchased the lands, in the manner stated in the case of Baker v. Borroughs, ante, page 337, and that this tender was made as soon as Ash knew of the sale. It also appears that appellee deposited in court money and notes in accordance with the terms of the purchase *345 from Grimes County, claiming the preference right secured by Ash and conveyed to him.
The questions of law arising upon the state of facts indicated above seem to us to have been already passed upon by our Supreme Court. Article 7, section 6, of the Constitution, in reference to the sale of school lands of the counties, provides, that "Actual settlers residing on said land shall be protected in their prior right of purchasing the same to the extent of their settlement," etc. The words "actual settlers" as here used have received a literal construction. Baker v. Millman,
We are of opinion, that the mere fact that Ash had verbally agreed to transfer his right to appellee before the land was sold did not prevent him from being an "actual settler." As no further settlement or residence on the land was required, we are of opinion that when his prior right to purchase was secured by actual settlement, and a tender in compliance with the terms of purchase prescribed and accepted by Grimes County, he could lawfully assign all his right and interest to appellee, who would be entitled to assert this right without himself settling upon the land. That this provision of the Constitution applied to future settlers, as well as those who were residing on the land when it was adopted, has been expressly decided in the case of Baker v. Dunning,
These conclusions dispose of all the propositions of appellant submitted under the first assignment of errors. The remaining assignment of error submits the proposition, that the order of the Commissioners Court approving the sale under which appellant claims is a judgment in rem, and therefore incapable of being impeached in a collateral proceeding. It seems to us that this proceeding of the Commissioners Court should be regarded rather as an act of agency in the sale of land than the exercise of a judicial function.
It follows from these conclusions that the judgment must be affirmed.
Affirmed. *346
