Blum v. Fristoe

• Decision Date: 17 November 1897
• Citation: 42 S.W. 656
• Parties: BLUM et al. v. FRISTOE.
• Court: Texas Court of Appeals

42 S.W. 656

BLUM et al. v. FRISTOE.

Court of Civil Appeals of Texas.

November 17, 1897.

Appeal from district court, Coke county; J. W. Timmons, Judge.

Trespass to try title by Leon & H. Blum against J. W. Fristoe. From a judgment for defendant, plaintiffs appeal. Reversed.

Guion & Truly, for appellants.

FISHER, C. J.

"This is a suit of trespass to try title by the appellants, Leon & H. Blum, tried in the district court of Coke county, November 11, 1896, for the recovery of 640 acres of land in Coke county, survey No. 278 in block No. 1a or No. 1, as surveyed by the Houston & Texas Central Railroad Company for the public school land of the state, set apart for the use and benefit of the common-school fund of the state of Texas, and originally filed on and purchased by one I. M. Bennick under act of the legislature of the state of Texas relating to the sale, etc., of the state school lands of the state of Texas, approved April 12, 1883. The appellee, J. W. Fristoe, answered by general demurrer, plea of not guilty, and general denial. The whole issue to be determined is as to the relative rights of purchasers of such state school lands under the acts of 1883 governing such sales, and subsequent acts thereto, and the acts of 1895, under which the defendant in the court below, and the appellee in this case, J. W. Fristoe, claims and holds the same. The district court rendered judgment against the plaintiffs (the appellants) and in favor of the defendant in the court below. The case was tried upon an agreed statement of facts, which are copied herein at length:

"`(1) It was and is agreed by the parties that the land sued for by plaintiff, and described by plaintiffs in their first amended original petition, is the same land in possession of and claimed by the defendant under his muniments and evidence of title hereafter set out.

"`(2) Plaintiffs' evidence of title is as follows: (a) On and prior to November 23, 1892, I. M. Bennick was in actual possession, in good faith, of the land in controversy, the same being state school section No. 278, H. & T. C. Railroad Company survey, in block No. 1a, in Coke county, Texas, located as an alternate section of such school land under the laws granting lands to railroads, and for the benefit of the public school funds of said state. (b) Application, in due form, dated October 8, 1883, as prescribed by the acts of the legislature of Texas of 1883, by I. M. Bennick, for the purchase of said land, under and in accordance with said act approved April 12, 1883, 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, and deaf and dumb asylum fund of said state. (c) Proper proof of actual occupancy by said I. M. Bennick, of date October 8, 1883, under said act of April 12, 1883. (d) Appraisement of said land under said act at $1 per acre, in proper form, prior to said application of I. M. Bennick. (e) Award of said land, by proper authorities of the state, under said act of 1883, to said I. M. Bennick, dated November 23, 1883 at $1 per acre. (f) Proper receipt of state authorities for first payment of principal due for said land, made by I. M. Bennick on said land on, and dated, November 23, 1883: principal, $21.33, and interest, $51.67; total, $73. (g) Proper warranty deed to said land, duly acknowledged, conveying said land, by I. M. Bennick and his wife, Susan Bennick, to D. P. Gay, which deed is dated September 2, 1891, and duly filed for record September 8, 1891, and duly recorded same date. (h) Proper warranty deed from D. P. Gay to plaintiffs, Leon & H. Blum, dated December 10, 1894, conveying same land (land in controversy) to plaintiffs, duly recorded December 21, 1894.

"`(3) Defendant's evidence is as follows: (a) Defendant was in actual, bona fide possession of the land in controversy,—an actual settler,— on the 18th day of November, 1895, and has continuously resided thereon up to this date. (b) The land in controversy was forfeited by the land commissioner of Texas for the non-payment of the interest due for the year ending January 1, 1892,—date of such forfeiture, May 28, 1895. (c) Said land was appraised, and such appraisement filed and recorded in the office of the clerk of the county court of Coke county, Texas, on the 2d day of September, 1895. (d) Application of defendant, J. W. Fristoe, to purchase said land, made on November 18, 1895, in due form, made, as actual settler, under act of legislature of the state of Texas approved April 16, 1895. (e) Land in controversy awarded to defendant, J. W. Fristoe, 24th day of December, 1895; such award made by the commissioner of the general land office. (f) Defendant has kept up the payments of interest since the award of said land to him.'"

The foregoing statement of the case, together with the agreed facts, are copied from appellants' brief. From these facts it will be seen that the only question for our consideration is whether the appellants' title was legally forfeited by the commissioner of the land office on May 28, 1895, on account of failure to pay interest due. The facts show that they are entitled to recover as purchasers of the school land in question under the act of 1883, unless their title was legally forfeited for failure to pay the interest due. Of course, in passing upon this question we must necessarily review the acts of the legislature providing for the sale of public school lands, and the forfeiture of title upon failure to pay interest. It is unnecessary for us to review all of the provisions of the law bearing upon the subject of the sale of school lands, and we will only notice such provisions of the law as are specially applicable to the facts of this case.

The appellants acquired their rights as purchasers through their vendors, under the act of the legislature of 1883. Section 10 of the act of 1883, and the amendment thereto, passed by the act of the legislature of February 16, 1885, providing for the summary forfeiture of the purchaser's title upon failure to pay the annual interest due, were repealed by the later act of February 23, 1885, which, in effect, declared that the failure to pay the interest when due should not occasion a forfeiture of the title of the purchaser. This was so declared in the case of Stock Co. v. McCarty, 85 Tex. 413, 21 S. W. 598. And it was there also held that, while the power to summarily declare a forfeiture did...