65 Tex. 291 | Tex. | 1886
This case having been dismissed upon sustaining a general demurrer and one special exception to the petition, our only inquiry is, was the petition good as against these pleadings of the defendant? The petition alleged, with great particularity, a compliance by Canales with all the requirements of the statute, necessary to be observed in the purchase of school lands, down to the payment of the first intallment of one-twentieth of the purchase money. This gave him an inchoate right to the lands described in his petition, which he could perfect by a compliance with the requirements of the statute as to acts subsequently to be performed. These were the execution of an obligation for the balance of the appraised value of the land, stipulating to pay the governor, in yearly installments, of one-twentieth of the purchase money each, the balance due for the land, and the payment of these installments at the respective dates of their maturity.
. So long as Canales was not in default in any of these particulars, the land could not, of course, be granted to another. The petition alleged that the obligation had been executed in conformity with the statute, and that the only installments of interest falling due up to the date of the institution of the suit, had been paid and accepted by the government. It did not specifically state that the obligation had been executed so soon as the application was received by the surveyor, or that it had been executed or sent to the commissioner of the general land office, or filed with the treasurer before the patents were issued to the defendant.
As against a general demurrer, we think the allegations of the petition in these respects were sufficient. Our rules have somewhat modified the principle, that, upon a general demurrer, the averments of the pleading demurred to shall be taken most strongly against the pleader, Hnder these rules, every reasonable intendment must be indulged in favor of the pleading. Rule seventeen for district courts.
The reasonable deduction to be drawn from allegations that the notes were executed, forwarded and filed with the treasurer, and that they were received and registered by the commissioner of the general land office, and that these things were done in compliance with the laws regulating the purchase of such lands, and that the applicant
The statute does not provide that the land shall be forfeited if the notes be not forwarded within any named period of time. It is doubtless true that the state may resume her right to the land for a failure to execute the notes, but it' was evidently not intended that, unless they were executed and forwarded so soon as the application was filed with the surveyor, the lands should be immediately forfeited. If time had been a matter of so much importance, it would have been so stated in the law. This is evident from the fact that it is prescribed in the statute that if the cash payment is not made within a named period the land may be sold to another. The legislature would not have been so careful in providing that a failure to pay the first installment for a stated time should immediately work a forfeiture, and have remained silent as to the time within which other delinquencies should be visited with the same penalty, if they-had intended that time should be of the essence of the provision in the latter cases equally with the former. Had the the notes been executed and delivered to the proper officers at too late a date to entitle Canales to the benefit of his purchase, they would certainly not have received and kept the money which he paid them as interest upon the notes.
The very fact that they recognized these payments as due the state, and received and receipted for them, and registered the obligations under which they were paid, shows'that they recognized the purchase as valid and the obligations as duly executed; and, unless the defendant, who claimed to have bought subsequently to Canales, could show some fact which avoided the latter’s purchase, notwithstanding his apparent compliance with the law, the title of Canales was good, and should have been sustained in this suit. He, at least, made out a state of case which every reasonable intendment favored, and good against a demurrer.
If the petition was not so clear and specific in the statement of dates or like circumstances as it ought to have been, the defects should have been pointed out by special demurrer. The only special demurrer sustained related to the failure to allege that the obligations were executed immediately upon filing the application to purchase the lands. This, we have shown, was not a good objection. We think the petition showed a cause of action as against a general
Reversed and Remanded.
[Opinion delivered January 19, 1886.]
