Brightman v. Comanche County

• Decision Date: 26 June 1901
• Citation: 63 S.W. 857
• Parties: BRIGHTMAN v. COMANCHE COUNTY et al.
• Court: Texas Supreme Court

Page 857

63 S.W. 857

BRIGHTMAN v. COMANCHE COUNTY et al.

Supreme Court of Texas.

June 26, 1901.

Error from court of civil appeals of Second supreme judicial district.

Action by Lyman Brightman against Comanche county and others. From a judgment of the court of civil appeals (62 S. W. 973) reversing a judgment of the district court, plaintiff brings error. Reversed.

Russell & Brightman and Goodson & Boynton, for plaintiff in error. Geo. E. Smith, Joiner & Joiner, and Wilkinson & Reid, for defendants in error.

WILLIAMS, J.

Plaintiff in error brought this action to recover of Comanche county and its officers part of a section of land which had once been a part of the public school land. Plaintiff asserted right to the land as a purchaser from the state; defendant, under a prior purchase made by one Holden, to whose rights it had succeeded. The prior purchase of Holden had been declared forfeited by the commissioner of the land office for nonpayment of interest, and plaintiff had thereafter regularly bought. The legality of such forfeiture is the only question in the case. It was declared by the commissioner of the general land office on the 4th day of April, 1898, under authority of the act of the legislature approved March 25, 1897 (Laws Reg. Sess. 25th Leg. p. 39). That law is as follows: "Be it enacted by the legislature of the state of Texas: That if upon the first day of November of any year any portion of the interest due by any person to the state of Texas for lands heretofore sold by the state of Texas, whether said lands be a part of the public domain or shall have been heretofore set apart for the public schools, university or any of the other various state institutions, has not been paid, it shall be the duty of the land commissioner to endorse on the obligation for said lands, `Lands forfeited,' and shall cause an entry to that effect to be made on the account kept with such purchaser, and thereupon said lands shall thereby be 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 the existing law, or any future law: provided, the purchaser of said land shall have the right, at any time within six months after such endorsement of `Lands forfeited,' to institute a suit in the district court of Travis county, Texas, against the commissioner of the general land office, for the purpose of contesting such forfeiture and setting aside the same, upon the ground that the facts did not exist, authorizing such forfeiture, but if no such suit has been instituted as above provided, such forfeiture of the commissioner of the general land office shall then become fixed and conclusive: provided, that if any purchaser shall die, or shall have died, his heirs or legal representatives shall have one year in which to make payment after the first day of November next after such death. This act is cumulative and is not intended to deny to the state the right to institute any legal proceedings that may be deemed necessary to secure the purchase money or possession of the land so sold. And this act is intended to be applicable to all purchases heretofore made under any or all of the various acts of the legislature under which land may have been sold by the state."

It is conceded that the specified facts existed to authorize the forfeiture, and that the commissioner, in declaring it, did everything required by the act, except to indorse on the obligation of Holden the words, "Lands forfeited." This he did not do, because the obligation was not an archive of his office, but was in the office of the state treasurer. Instead, besides making the indorsement on the account, he indorsed the words upon the file wrapper containing all of the papers of his office relating to this purchase, and transmitted to the state treasurer a notice showing such forfeiture, and the latter made a corresponding entry upon the account in his office. The reason why the obligation was not in the land office is fully explained by former laws. Under the act of 1879, in force when Holden purchased, such obligations were to be first sent to the commissioner, and were to be by him registered in his office, and then delivered to the state treasurer, and to be kept by the latter. The application, the affidavit, the field notes, and receipts of the treasurer for money paid by the purchaser were to be filed and kept in the land office. Both officers were required by this and subsequent laws to keep an account with the purchaser. Under that act, forfeitures for nonpayment of interest were to be enforced by a proceeding in court, instituted upon the certificate of the commissioner showing such nonpayment. A copy of the judgment was to be filed in the treasurer's office, and he was to indorse the obligation, "Forfeited," and send it to the land office, where it was thereafter to be kept. No other provision has ever been made by law for the deposit in the land office of obligations taken under this statute, and as there had never been a proceeding for a forfeiture such as is here provided, and as this law has been superseded by others, it gave no authority for changing the place of deposit from the treasurer's office to the land office. All...