61 S.W. 534 | Tex. App. | 1901
O.D. Holloway was the original purchaser from the State of the school land in controversy, that is, section 20 and the north half of 32, block 26, Mitchell County. The controversy as to section 10, block 27 need not be noticed. The date of Holloway's purchase, which was valid and not questioned, was August 28, 1897, he being then an actual settler on section 20. May 20, 1898, he sold the land so acquired, and surrendered possession to J.S. O'Keefe, a minor over 18 years old, who at once became an actual settler on section 20, and a purchaser from the State of that section and the north half of 32 by the substitution of his own affidavit and obligation for those of Holloway. March 29, 1900, Richard McPherson, having invaded the possession of O'Keefe, made application to purchase the land in controversy as an actual settler on section 20, but his application was rejected by the Commissioner of the General Land Office. This suit was consequently brought by him against O'Keefe to establish his right to the land. The only issue submitted to the jury was whether or not McPherson was an actual settler when he made his application to purchase. The evidence warranted the verdict rendered in his favor upon this issue, and upon all other issues of fact the evidence was such as to warrant the court in treating them as not open to controversy. We proceed, therefore, to consider the questions of law arising upon the established facts.
McPherson evidently undertook to acquire the land from the State, and prevailed in the trial below, upon the assumption that the transfer from Holloway to O'Keefe, because of the minority of O'Keefe and because of the abandonment of possession by Holloway, had the effect of placing the land again upon the market; but in so holding we think the court erred. If it be conceded that the substitution of O'Keefe for Holloway as purchaser from the State was not authorized by law, that did not of itself, or together with the surrender or abandonment of possession by Holloway, work a forfeiture of the Holloway purchase, and place the land back upon the market. The decisions of our Supreme Court have established the proposition as the law of this State that any valid purchase of public school lands may be canceled by the State for default on the part of the purchaser in the payment of annual interest, without re-entry or judicial ascertainment, upon the ground that, as the superior *315
title remains in the State and the contract is executory, the State has the same right as any other vendor, upon default of the vendee, to elect to treat the contract of sale as broken and terminated. Fristoe v. Blum,
But it is contended in behalf of McPherson that the default of the purchaser in failing to reside on the land as required by law and in the contract of purchase, unlike the default in payment of interest, itself works a forfeiture, and places the land again on the market without any action on the part of the Land Commissioner. This contention involves a construction of the following language of section 11 of the Act of 1895, (Sayles' Civ. Statutes, article, 4218l): "And if any purchaser shall fail to reside upon and improve in good faith the land purchased by him, he shall forfeit said land and all payments made thereon to the State, in the same manner as for nonpayment of interest, and such land shall be again for sale as if no such sale and forfeiture had occurred." Just preceding this sentence are the provisions for forfeiture for failure to pay interest. Section 9 of the same act (Sayles' Civil Statutes, article 4218j) provides that under the conditions there named, for any temporary abandonment of the land on account of the drouth, purchasers "shall not have the forfeiture declared against them under the law providing for the forfeiture of such lands for nonoccupancy." Unless by the clause, "in the same manner as for nonpayment of interest," the Legislature meant to refer to the next preceding sentence of that section for the manner of declaring the forfeiture, we are unable to explain why it was inserted at all, as it was not in the previous act on the subject of forfeiture, which was otherwise identical; or what it means; or what was meant in the quotation above made from the ninth section of the same *316
act by the use of the word "declared" in connection with forfeiture for nonoccupancy. What was said in the opinion of Chief Justice Tarlton, in Atkinson v. Bilger, 4 Texas Civil Appeals, 99, and by Justice Head, in Metzler v. Johnson, 1 Texas Civil Appeals, 137, was with reference to the Act of 1887, which contained no such clause. In McKnight v. Clark, 58 Southwestern Reporter, 146, we were considering the effect of the failure of a "bona fide owner of and resident upon" other lands than school lands to reside upon the same or a part of the additional lands purchased as provided in article 4218fff, to which the clause of forfeiture above quoted does not seem altogether applicable, for such purchaser might fully comply with the article last named and his land be subject to forfeiture under article 4218l, which makes the failure to reside upon the land purchased, and not upon "other land," the ground of forfeiture. But however this may be, we are of opinion that it required action on the part of the Commissioner to forfeit the purchase of Holloway, it being legal and valid till it was in some way set aside at the instance of the State. We are also of opinion that the case is within the spirit if not the letter of the decision in Willoughby v. Townsend,
In view of these conclusions it becomes unnecessary to consider the effect of O'Keefe's minority upon his rights in the premises. Lest, however, our silence upon a question vitally affecting so many school land titles in Texas should be misconstrued, as it seems to have been a custom or regulation of the General Land Office of long standing to sell such lands to minors over the age of 18, we will add that we are disposed to adhere to the decision made by this court in Weatherford v. McFadden, 21 Texas Civil Appeals, 260, notwithstanding the subsequent decision of the Supreme Court in Walker v. Rogan,
Upon the conclusions already stated the judgment will be reversed and here rendered against defendant in error.
Reversed and rendered.
It is, however, insisted that as Holloway was authorized by article 4218k of the Revised Statutes to have a new purchaser substituted, what was done in this instance to accomplish that result had the effect of placing the land again on the market. But manifestly there no merit in this contention. If the land can be said in such case to be again placed on the market, it is certainly in a very limited sense, for it can only be sold under this article of the statute to the person selected by the original purchaser.
As to the difficulty of declaring a forfeiture where the obligation of a minor has been substituted for that of the original purchaser, and the original obligation has been canceled or surrendered, we need only add that if the Land Commissioner has, by doing what the law did not authorize, placed it out of his power to declare a forfeiture as provided by law, the State is not without a remedy, or at least not without the power to create one.
The motion will be overruled.
Overruled.
Writ of error refused.