78 S.W. 18 | Tex. App. | 1903
Appellee, who was plaintiff below, claims the southwest quarter of section 143, block 97, of State school land in Scurry County by virtue of rejected applications to purchase made August 14, 1900, and May 16, 1901. Appellant claims said section 143 by virtue of an award thereof to her on April 20, 1900, as additional to her home section 128, in the same block, which had been awarded to her March 20, 1899. For the purpose of showing that appellant had no title to her home section at the time of the award to her of section 143, and that hence she was not a qualified purchaser of the latter section, the court, over appellant's objection, admitted in evidence a certified copy by the Commissioner of the General Land Office of a certified copy of a judgment of the district court rendered September 26, 1899, in favor of one G.A. Autry, and against appellant and others for the title and possession of said section 128. *607
We find no error in the ruling. An award of section 128 had been made to appellant, and Autry had a pending application to purchase, asserting a right to the award. The suit was therefore an appropriate method of determining the conflicting claims, and the copy of the final judgment in Autry's favor was appropriate evidence in explanation of such further action, if any, as the Commissioner should deem necessary to take in canceling the award to appellant and granting it on the application of Autry. In other words, said copy seems to be such instrument or paper as under the circumstances relates to the sale of appellant's home section 128, and hence to be within Revised Statutes, article 4218p, constituting all papers relating to sales of land records of the General Land Office. If so, the copy offered was admissible by the terms of Revised Statutes, articles 2308, 2315.
Appellant insists that in no event is the judgment against her admissible in behalf of appellee, who is a stranger thereto. But to this view we are unable to assent. As shown in the record it was in full force at the inception of appellee's claim to section 143, and has never been legally set aside. In form and legal effect it seems to have divested appellant of the title and right of possession to her said home section, and to this extent and for this purpose was admissible as one of the links or muniments of Autry's title. Ellis v. Le Bow,
As preliminary to the introduction of the copy of the judgment in Autry's favor his application to purchase section 128 as additional to his home section 122 was offered. Objection is urged that, inasmuch as it appears that Autry's home section had been classified as "watered grazing," he was not a competent purchaser of additional section 128, and hence that Autry's application to purchase section 128 should have been excluded on appellant's objection on this ground, the case of Terry v. Dale, 27 Texas Civ. App. 1[
It further appears that upon the trial it was shown that on October 24, 1897, the Commissioner of the General Land Office leased to one A.P. Bush, Jr., for a period of five years, a number of sections of school land, including, among others, said section 143, and that on the 30th day of November, 1898, said Bush assigned or released section 143 in behalf of appellant. The waiver of lease was shown by certified copy of the original instrument on file in the General Land Office, which was neither acknowledged nor had been recorded, to the introduction of which copy objection was made that it was not such instrument as was required or permitted to be filed with the Commissioner of the General Land Office. We think the objection must be overruled for reasons sufficiently indicated in what we have said in disposing of the assignment first treated. See also, Rev. Stats., art. 4218u; Stokes v. Riley, 29 Texas Civ. App. 375[
As assigned, we find no error in the record, or other question we deem it necessary to discuss, and the judgment, being in our opinion sustained by the verdict of the jury, is affirmed.
As will be seen from the original opinion the land in controversy in this suit is situated in the absolute lease district and was included within the terms of a lease issued to A.P. Bush, Jr., October 24, 1897, that was unexpired at the date of both of appellee's applications to purchase. In such instances the cases above mentioned undoubtedly establish the doctrine that the Commissioner of the general Land Office has no authority to sell save to a qualified applicant in whose favor the lessor has waived his leasehold title. In the original opinion it was held, in effect, that the objections to the Commissioner's certificate of cancellation did not apply in cases where, as here, it appears that the lease as a whole has not been canceled, and where, as in the case before us, but a waiver or partial cancellation was attempted. We thought, however, that the certificate introduced in evidence, together with other evidence, at least tended to show that the Bush lease had in fact been canceled as to the land in controversy, in which respect this case is distinguishable from the cases cited, and that in the absence of proof of the ground of cancellation, which was not shown, we would assume that the Commissioner acted lawfully, and canceled the lease for an authorized cause. From which the conclusion of course followed that the land in controversy was subject to appellee's applications, it appearing that appellant was not a competent purchaser.
But on reconsideration we have concluded that we were in error because of the fact that appellee was the plaintiff below, asserting the right by virtue of rejected applications against one holding under an award. The burden was not upon appellant, as we in effect placed it, but upon appellee to show, under the circumstances appearing, not only that the lease as to the section involved was canceled, but also that the Bush lease had been canceled at a time, in the manner, and for a cause, authorized by law. See Rev. Stats., art. 4818v; Bank v. Dowlearn,
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It follows from these conclusions that the motion for rehearing should be granted, the judgment reversed and the cause remanded for a new trial, and it is so ordered.
Motion granted. Reversed and remanded. *611