Burnam v. Terrell

• Decision Date: 15 February 1904
• Parties: BURNAM v. TERRELL, Com'r. et al.
• Court: Texas Supreme Court

78 S.W. 500

BURNAM v. TERRELL, Com'r. et al.

Supreme Court of Texas.

February 15, 1904.

Original application by W. T. Burnam for a writ of mandamus to J. J. Terrell, commissioner of the general land office, and another. Refused.

Hill & Lee, for relator. C. K. Bell, Atty. Gen., T. S. Reese, Asst. Atty. Gen., and A. R. Pool, for respondents.

GAINES, C. J.

This is a petition for the writ of mandamus filed by Burnam, as relator, to compel the Commissioner of the General Land Office to reinstate him as purchaser of two sections of school land in Menard county, and, in the event that cannot be done, to recognize him as lessee of the lands from the state. Ed Ellis, who made application to purchase the land subsequent to that of relator, was made a party defendant to the suit. The following are the facts disclosed by the petition and answers: The lands in controversy were a part of the school lands of the state and are known as section 66, in the name of Beaty, Seale & Forwood, and section 62, in the name of J. H. Gibson. The southwest corner of section 66 connects with the northeast corner of section 94 in the name of J. H. Gibson, which is also a school section. The northwest corner of section 62 also connects with the southeast corner of the latter section. But neither section 66 nor section 62 touch any other survey of school lands the title to which remained in the state. We will state the transactions which resulted in this controversy as nearly in the order of time as may be practicable. In 1883 section 94 was regularly sold by the commissioner to one Priest; but in 1895, by a decree of the district court in a suit brought by the state, the right of the purchaser was declared forfeited for the nonpayment of interest. A copy of that decree was filed in the land office on the 22d day of August of that year. On the 10th day of the same month the relator applied for a lease of sections 62 and 66 for the term of 10 years. They were awarded to him as lessee, and his lease was kept in good standing up to August 14, 1900. In June, 1900, relator made application to purchase section 66, and in July of the same year he applied also to purchase section 62. In his applications he complied in all respects with the law for the sale of "isolated and detached" sections of school lands. They were filed in the land office on the 16th day of June and the 8th day of July, respectively, and the lands were awarded to him by the commissioner then in office; section 66 on the 28th day of July and section 62 on the 27th day of August, all in the same year. At the time of these awards the map in the land office had upon section 94 the mark "F. 14146," which, according to the practice in the land office, referred to the file number of the papers relating to the section, and was intended to show that the section had been sold to a purchaser under the statutes for the sale of the school lands, but did not show that the title had ever passed out of the state. This mark was placed upon the map in 1883, when the land was first sold. It also appears that in the abstracts of lands subject to taxation furnished by the Commissioner of the General Land Office to the assessors of the counties from the year ending December 31, 1885, and for each successive year thereafter to and including the year 1900, section 94 was entered as having been sold to Priest. On the 30th of August, 1895, after the sale of section 94 to Priest was forfeited, and a certified copy of the judgment of forfeiture had been filed in the land office, it was leased to one Perry Crowell for the term of five years. On August 6, 1900, one Wilkinson, as assignee of this lease, made application to purchase the survey as a detached section, and his application was accepted, and the land awarded to him. Having paid the purchase money in full on February 14, 1902, a patent therefor was issued to him. On the 9th day of March, 1903, the respondent Terrell, as Commissioner of the General Land Office, canceled each of the sales made to relator by his predecessor in office.

It therefore appears from the facts stated that at the time that the relator made his respective applications to purchase the two sections of land in controversy and at the time they were respectively awarded to him section 94, which was the connecting link between sections 62 and 66, had been sold by the commissioner under the terms required by the statute, but that the inchoate title thus acquired by the purchaser had been annulled by a judicial forfeiture for his failure to comply with the obligation of his contract, and that that section had become again a part of the state's school lands. As we understand the position of relator, it is not claimed that at the time the lands were awarded to him they were in fact detached. It is insisted, however, that, since the Legislature has invested the Commissioner of the General Land Office with the power to sell the "isolated and detached" sections of school lands in certain counties, of which Menard is one, the duty is necessarily devolved upon him to determine in the first instance what sections are so isolated and detached; and that when he has determined that question, and made a sale accordingly, his decision is conclusive upon the matter. It is a well-recognized rule that where an officer is empowered to determine a question of fact in the absence of some provision of law for a revision of his ruling his decision is binding upon the courts. But does the case before us fall under that rule? The statute in question is in these words: "And all sections and fractions of sections, in all counties organized prior to the first day of January, 1875, except El Paso, Presidio and Pecos counties, which sections are isolated and detached from other public lands, may be sold to any purchaser, except to a corporation, without actual settlement, at one dollar per acre, upon the same terms as other...