Berrendo Stock Co. v. McCarty

• Citation: 20 S.W. 933
• Parties: BERRENDO STOCK CO. v. McCARTY.
• Decision Date: 02 November 1892
• Court: Court of Appeals of Texas

20 S.W. 933

BERRENDO STOCK CO. v. McCARTY.

Court of Civil Appeals of Texas.

November 2, 1892.

Appeal from district court, Tom Green county.

Action of trespass to try title by the Berrendo Stock Company against D. Q. McCarty. From a judgment entered on a finding of facts by the court in favor of defendant, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by KEY, J.:

(1) That the four sections of land involved in this suit are state school lands, surveyed and set apart to the state of Texas. (2) That the same were purchased in good faith by the four original applicants, in conformity with the rules and regulations presented by the state land board for the purchase of such lands under the act of April 12, 1883. (3) That the resolution of the land board as to the manner of making such sales was at variance with the mode enjoined by the statute. (4) That said original purchases conformed to all the prerequisites enjoined by the land board in all particulars, but, as to the place and manner of making said sales, the directions of the land board, and not the law, were observed. (5) That the first two installments of annual interest for 1884 and 1885 were paid by the purchasers. (6) That the annual installments of interest due January 1, 1886, and January 1, 1887, were not paid nor tendered when due, and no tender of either was made until the 28th day of January, 1888, when a proper tender (that is, in due form) was made to the treasurer of the state for the annual interest due for the years 1886 and 1887. Also that a tender of the interest due for 1888 was made July 30, 1888. All these tenders were refused. (7) That subsequent to the 1st day of August, 1887, and prior to the 15th day of November, 1887 all of these purchases were by the proper officers having custody of the purchase-money obligations declared forfeited in the manner prescribed by the act of 1883. (8) That heretofore, about the 15th day of November, 1887, the defendant in this suit made his application to lease these four sections under the act of April 1, 1887, and said lease was duly and properly made in accordance with law, and defendant has paid money under his contract. (9) These lands were classified and appraised by the county surveyor of Tom Green county under the act of the legislature providing for such appraisement, (1881,) and the classification and appraisement duly approved by the commissioners' court of Tom Green county. There was no plea of any other or further classification and appraisement required by the land board, except as may have been contained in the regulation for the sale, which was, as to these lands, fully complied with.

Joseph Spence, Jr., and H. C. Fisher, for appellant.

KEY, J., (after stating the facts.)

This is an action of trespass to try title for the recovery of four sections of land. The appellant claims the land under purchases made by its vendor from the state under the act of the legislature of April 12, 1883. The case was tried by the court without a jury, and conclusions of facts and of law filed. The conclusions of facts are not complained of, and we have adopted them as correct. It is contended by appellant that the court erred in holding that it was not entitled to recover, because its vendors, the original applicants to purchase the land from the school land board, had failed to comply with their contracts of purchase, in that they did not pay nor offer to pay the annual installments of interest due January 1, 1886, and January 1, 1887, until after the 1st day of August, 1887. The solution of this question depends upon the construction to be placed upon two acts of the nineteenth legislature.

The first act, approved February 16, 1885, was amendatory of the act of April 12, 1883, and, except the caption and emergency section, reads thus: "Section 1. Be it enacted by the legislature of the state of Texas that sections 9 and 10 of an act entitled `An act to provide for the classification, sale, and lease of the lands heretofore or hereafter surveyed and set apart for the benefit of the common school, university, the lunatic, blind, deaf and dumb, and orphan asylum funds' be, and the same are hereby, amended so as hereafter to read as follows: `Sec. 9. The purchaser shall pay at once to the person selling for the state, or to the state treasurer, as the board may determine, and within such time as it may fix, one thirtieth of the amount bid, and execute his obligation for the remainder of the purchase money, payable to the state of Texas, and binding the purchaser to pay one thirtieth of the whole price on the first day of each succeeding year until the whole is paid, and interest at the rate of five per cent. per annum on the whole unpaid purchase money from date, payable annually on or before the first day of March of each year: and provided, that after the expiration of seven years the purchaser shall have the option to pay...