September 27, 1901, survey 74, grantee B. R. I. R., containing 160 acres and located in Young county, was awarded by the land commissioner to J. F. Gilmore under the act approved' April 16, 1895 (Acts 24th Leg. c. 48), and on October 7, 1902, survey 73, same original grantee and same acreage, and in the same county, was awarded to said Gilmore. Gilmore and wife, on February 1, 1907, conveyed by deed said tracts to T. E. Mills. On December 3, 1909, said Mills and wife conveyed the same land to A. N. Gordon, and on December 3, 1912, said Gordon and wife conveyed to F. P. Burch said two quarter sections. The interest to the state from November 1, 1912, to November 1, 1913, and due on the latter date, remained unpaid up to August 7, 1914, on which latter date there was filed in the office of the county clerk of Young county an instrument signed by the commissioner of the general land office and providing that these two quarter sections were subject to forfeiture for nonpayment of interest due November 1, 1913, and announcing that if said interest was not paid, said two tracts would be on the market for sale August 9, 1914.' In said instrument the land mentioned was classified as agricultural, instead of grazing, as in the award to Gilmore, and the. price placed at $4 minimum, instead of $1 and $1.50, respectively. On October 2, 1914, there was filed in the office of the county clerk of Young county an award, dated 9/25/14, of these two quarter sections, signed by the land commissioner. By this instrument the two tracts in question were awarded to Arthur Speed at $6.55 an acre, date of sale being August 10, 1914. The original award to Speed was made September 24, 1914. On October 27, 1914, said Speed sent to the general land office his money order for the interest, to wit, $11.65, and on November 2d following, the commissioner of the general land office accepted said remit *782 tance. On January 11, 1915, appellant filed his petition in the district court of - Young county in form of trespass to try title against John Sadberry and Frank Burch. He alleged that the rental value of said land was $5 per annum, and that the defendants had torn fences, sheds, and houses off said land, since they had unlawfully entered upon the same, of the reasonable value of $400, and he prayed for judgment for the land, rents, and damages. In the defendants’ answer, Sadberry disclaimed any interest in or title to the land except as the tenant of Burch. Burch answered by general and special demurrers, and specially pleaded the 5 and 10 years’ statutes of limitation, valuable improvements made in good faith, and further pleaded title through purchase from the state. He further specially pleaded that it had been represented to him, and he so believed, that he had until November 1, 1914, to pay the interest due the state on said land, and that he was informed, and so understood, that the interest due November 1, 1913, had been paid by his immediate grantor, and that he still believed that the payment for same had been made according to the contract between the defendant and his grantor. It was further alleged that, if any pretended forfeiture had been made by the general land office and its officials for a pretended nonpayment of interest, the same was done without any notice to defendant, and that if he had received such notice, he would have paid such interest. He further pleaded that it had been the immemorial custom of the general land office to issue to the owners of school land notice of arrears of interest that forfeitures might be avoided and the purchaser protected from loss, and, further, that as soon as he learned that interest was due and claimed by the general land office, he did, on August 5, 1914, tender to the general land office all interest due, but that said tender had been refused by the commissioner, on claim that the land had been forfeited, reclassified, and sold, and said commissioner declined to reinstate the defendant in his rights as a purchaser. Defendant, in his pleadings, tendered in court the interest, and also the part of the purchase money due on the original sale, together with patent fee, etc., and prayed that said money be transmitted to the treasurer of the state of Texas. Upon a hearing before the court, judgment was rendered that plaintiff take nothing by reason of his suit, and from this judgment plaintiff appeals.
Appellant presents only two assignments of error, which are as follows:
“(1) The court erred in holding that the defendant F. P. Burch had 90 days after said land was declared delinquent by the commissioner of the general land office within which to be reinstated. (2) The court erred in holding that the defendant had the right to be reinstated in the general land office for the following reasons: The evidence clearly shows that the land in question became delinquent for interest payment on November 1, 1913, and subject to forfeiture then; that the same was forfeited by the commissioner of the general land office on August 4, 1914, and sold to plaintiff on September 24, 1914, and that no effort was made by' the defendants to be reinstated in said purchase until after the land in question was sold by the commissioner of the general land office to plaintiff in September, 1914.”
There are contained in the record no findings of fact and conclusions of law by the' court, and therefore it does not affirmatively appear that the judgment of the court rested upon the basis asserted in the first assignment. The court qualifies plaintiff’s bill of exception upon which this assignment is predicated as follows:
“There was no specific evidence of a default in payment of interest, the defendant showing that, while he did not pay the interest, he had relied on the promise of his vendor and supposed it paid, until the trouble arose. There was -no evidence of forfeiture, except that contained in the certificate of the acting commissioner of the general land office, which was admitted by the court, over objections of defendant, after the trial, ‘forfeited August 4, 1914.’ The defendant testified that between the 1st and 15th of August he made application to the general land office to have his rights reinstated, but the defendant could not be certain as to the exact date. That he tendered the necessary amount of money to pay the interest in default, if any, which action was made through his attorney at Austin, having made the arrangements by wire, and that the said attorney so employed reported that the commissioner had denied the application to be reinstated. The law authorized reinstatement, on payment of defaulted interest any time prior to the intervention of rights of plaintiff, which was September 24, 1914. The burden was on the plaintiff to show his rights intervened before the application for reinstatement was made by the defendant, which application for reinstatement was made not later than August 15, 1914. This, in the court’s opinion, was not done.”
“If upon the 1st day of November of any year any portion of the interest due on any obligation remains unpaid, the commissioner of the general land office shall indorse on such obligation, ‘Land forfeited,’ and shall cause an entry to that effect to be made on the account kept with the purchaser; and thereupon said land shall thereby he forfeited to the state without the necessity of re-entry or judicial ascertainment, and shall revert to the particular fund to which it originally belonged, and be resold under the provisions of this chapter or any future law.”
To establish a forfeiture it was necessary to show at least a substantial compliance' with the requirements of the statute concerning forfeitures, and a failure to establish any matter, act, or condition, required or provided would fall short of the necessary proof.
“A usage in the land office, long pursued, of declaring forfeitures for nonpayment of interest by simply making an indorsement on the purchaser’s obligation, to which our attention has been directed by the respondents, would be persuasive if the construction of the statute were doubtful. But we regard its provisions as plain.”
We will now direct our attention to the state of the evidence with reference to the forfeiture claimed by plaintiff. After both parties had rested, the plaintiff offered, over the objection of defendant, the following certificate from the general land office:
“General Land Office, State of Texas.
“Austin, September 28, 1915.
“I, J. H. Walker, chief clerk and acting commissioner of the general land office of the state of Texas, do hereby certify that the papers, documents and records of said office show: That survey 74, containing 160 acres, B. R. I. R., purchased from the state October 6, 1901, by J. G. Gilmore, and survey 73, B. R. I. R., containing 160 acres purchased from the state by John F. Gilmore, October 10th, 1902, each situated in Young county, Texas, were forfeited August 4, 1914. * * *
“In testimony whereof, I hereunto set my hand and affix the impress of the seal of said office on the day and date first above written.
“[Seal.] J. H. Walker, Acting Commissioner.”
“There was no evidence of forfeiture except that contained in the certificate of the acting commissioner of the general land office, which was admitted by the court over objection of defendant after the trial.”
As it does not affirmatively appear that the court, in rendering judgment, did consider this certificate as establishing the forfeiture claimed, in support of the judgment we can presume that he did not do so. While in this qualification, the court states that the evidence shows that later than August 15, 1914, defendant made application to the general land office for reinstatement, and tendered the interest in arrears, and that' said date was prior to the intervention of any rights held by plaintiff.
“Where a judgment of the court is correct, it will not be reversed on appeal because the trial court has based its decision on insufficient or erroneous reasons or grounds, or has stated no reasons therefor. And when it does not affirmatively appear on what grounds the decision was made, it is the duty of the appellate court to sustain the court below, if there was any ground disclosed by the record on which the order could properly have been made. So a deci-. sion based on several grounds, one or more of which sustain it, will not be reversed, although some of the grounds are erroneous, at least unless in cases where the ground of decision can be seen to have misled a party to his injury. The ground on which the court below proceeded, it has been held, is not a subject of inquiry in the appellate court. It is the ruling itself, and not the reason therefor, with which the reviewing court is concerned.”
See Railway Co. v. Fowler,
From what we have said it follows that both assignments must be overruled, and the judgment affirmed.
<S=>For other eases-see same topic and KEY-NUMBER-in all Key-Numbered Digests and Indexes