Berrendo Stock Co. v. McCarty

• Decision Date: 23 February 1893
• Citation: 21 S.W. 598
• Parties: BERRENDO STOCK CO. v. McCARTY.
• Court: Texas Supreme Court

Page 598

21 S.W. 598

BERRENDO STOCK CO. v. McCARTY.

Supreme Court of Texas.

February 23, 1893.

Error to court of civil appeals, third supreme judicial district.

Trespass to try title by the Berrendo Stock Company against D. Q. McCarty. A judgment entered on a finding of facts by the court in favor of defendant was affirmed by the court of civil appeals, (20 S. W. Rep. 933,) and plaintiff brings error. Reversed.

Jos. Spence, Jr., for plaintiff in error. D. D. Wallace, for defendant in error.

HENRY, J.

This case comes before us upon a writ of error to the third supreme judicial district, upon the following conclusions of fact: "(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 prescribed by the state land board for the purchase of such lands under the act approved 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 purchasers conformed to 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 (1884 and 1885) were paid by the purchasers. (6) That the annual installments of interest due on the 1st days of January, 1886 and 1887, were neither paid nor tendered when due. No tender of either was made until the 28th day of January, 1888, when one was made in due form to the state treasurer for the annual interest due for the years 1886 and 1887. A tender of interest due for the year 1888 was made on the 30th day of July of that year. These tenders were all refused. (7) 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 his annual installment of lease money under his contract. (9) These lands are 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 were duly approved by the county 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."

The only question presented for our decision is whether or not there was in force in this state, between the 1st day of August, 1887, and the 15th day of November in the same...