Collyns v. Cain

• Decision Date: 12 December 1894
• Citation: 28 S.W. 544
• Parties: COLLYNS v. CAIN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

28 S.W. 544

COLLYNS v. CAIN.¹

Court of Civil Appeals of Texas.

December 12, 1894.

Appeal from district court, Tom Green county; J. W. Timmins, Judge.

Trespass to try title by B. M. Collyns against W. W. Cain. There was a judgment for defendant, and plaintiff appeals. Affirmed.

This is an action of trespass to try title by appellant against appellee for 640 acres of land in Tom Green county, being section No. 80 in block Z, surveyed for the common-school fund by virtue of certificate No. 418, issued to the East Line & Red River Railroad Company. Plaintiff claimed the land by purchase from the state under his application made under the act of April 12, 1883. Appellee (defendant) filed a plea of not guilty, and set up that plaintiff's title was acquired by fraud, and misrepresentations to the land board, and was therefore void. Verdict and judgment were for defendant for the land, from which the appeal was taken. The plaintiff claimed title as follows: November 21, 1883, his agent. C. D. Foote, made application to the state land board to purchase seven sections of the common-school lands, describing them; name of original grantee, and number of certificate by virtue of which the surveys were made, number of section and number of acres; stating the amount of his bid, including the land in controversy, section No. 418, in which all the surveys were described as "Dry grazing land; no water; no timber; mesquite grass; soil not suitable for agricultural purposes." The application was sworn to, and filed in the office of the county surveyor, November 23, 1883. It was forwarded by the county surveyor to the state land board, at Austin, and filed in the office of the secretary of the board, December 17, 1883. The board accepted the bid of plaintiff for the land (two dollars per acre), and on January 10, 1884, awarded the land to him, at Austin, Tex. Plaintiff, by his agent, complied with the law of 1883, under which his application was made, by making cash payment of the amount required by law, and executing his notes for the balance of the purchase price. Plaintiff proved that he had made all payments on the land as required by the law and his contract, up to time of trial. The defendant offered no title. He entered upon the land in the spring of 1889 under an application to purchase as an actual settler, fenced it, and has had actual possession of it ever since. His answer, setting up title by purchase in 1889, was stricken out on demurrer. The jury evidently found that plaintiff's agent did not act in good faith in describing the land or the soil.

Appellant insists, by assignment of error, that the court should have set the verdict aside upon motion for a new trial, upon the ground that there was no evidence justifying the verdict that plaintiff's agent acted in bad faith in describing the land in the application to purchase. Our conclusion as to the testimony is that it fails to show that there was bad faith, or a want of good faith, in classing the land as not suitable for agricultural purposes. The effect of the testimony is that at the time the application was made the land was not deemed to be agricultural land, and would not have been classed as such, though there is testimony tending to show that since the time of the application, say since 1887, the land should be classed as suitable for agriculture. The rules of the land board required that: "The application shall be in writing, and addressed to the secretary of the state land board, Austin, Texas. Said application shall fully and minutely describe each and every section desired to be bought or leased; giving number of section, block, and certificate, and name of original grantee, with character of soil, grass, timber, and water, if any, on each section or piece of land." The application was to be sworn to, "and the lease or sale," say the rules, "will be regarded as vacated and null for misrepresentation or false description." As before stated, the description of the soil in plaintiff's application, after stating that it was dry grazing land, was, "Soil not suitable for agricultural purposes." The evidence tends to show that the soil on this survey was suitable for agricultural purposes when there was sufficient rain to raise crops, and the verdict of the jury, to the effect that the application did not in good faith describe the soil, is supported by the evidence. The affidavit of the applicant was that he had "correctly given * * * the character of the soil," etc. There was no classification of the land under the act of 1883, and it was not in proof that any classification, as provided by the act of 1881, had been adopted by the land board. H. B. Tarver, the county surveyor of Tom Green county, viewed and appraised the state school lands in Tom Green county in 1881 and 1882, under the act of 1881, then in force. He filed his report with the commissioners' court of the county, one copy of which was filed in the county surveyor's office, one with the clerk of the county court of Tom Green county, and one was sent to the general land office, at Austin. The copies filed in the offices of the clerk and surveyor of the county were washed away and destroyed by a flood in 1882. Tarver, as surveyor of the county, acted as agent of the state land board in Tom Green county, under the act of 1883, and, pursuant to resolutions of the board, received applications of bidders, filed them in his office, recorded them in a book kept for that purpose, and then mailed them to the secretary of the board, at Austin. Tarver testified: "I don't know that the land board used my classifications of school lands in Tom Green county, made under the act of 1881, in making sales in January, 1884. I know that the commissioner of the land office sold lands under my classifications." The land was not sold at the courthouse door in Tom Green county, nor cried off there, but was awarded to plaintiff, at Austin, by the land board, January 10, 1884. The question submitted by the court to the jury on the trial was whether plaintiff or his agent, Foote, acted in good faith in purchasing the land, and complied with the rules of the land board, instructing the jury that if they did act in good faith the verdict should be for the plaintiff. And on the same question of good faith the court charged the jury, "And you are instructed that if said Foote, at the time he made the application to purchase said land for plaintiff, believed the description of said land contained in said application was substantially true, and had reasonable ground for so believing, the said description would be considered as made in good faith." The court also instructed the jury that, "If you do not find that said purchase was made in good faith, then you will return a verdict in favor of defendant." The verdict, under these instructions, being for defendant, the jury evidently found that plaintiff's agent did not act in good faith; and appellant insists that the verdict was contrary to the evidence, and that the court below should have granted him a new trial.

R. H. Ward, for appellant. T. L. Nugent and Cochran & Hill, for appellee.

COLLARD, J. (after stating the facts).

Plaintiff could not recover the land unless he showed, by competent testimony, that he acted in good faith. The act of 1883, under which plaintiff made his application to purchase, after providing for the classification of the public free school lands into "agricultural, pasture and timber lands," and a tabulated statement of the lands in each county, showing certain named conditions, provided for the sale of such lands; and section 8 of the act provides that the purchaser desiring to purchase shall file his application with the person authorized to sell, designating the particular section, or tract less than a section, which he desires to purchase, and accompany it with a sufficient sum of money to pay for advertising the bid in such manner as may be prescribed by the board; and on the first Tuesday of the month designated in the advertisement, and after at least 20 days' notice, the person having authority to sell shall sell the same to the highest and best bidder at the courthouse of the county in which it is situated, if in an organized county, or, if in an unorganized county, at the courthouse door of the county to which it is attached for surveying purposes. The application shall be considered the first bid, unless raised before offered at public outcry, etc. Gen. Laws 1883, p. 87 (section 8 of the act). The act directs a classification of the lands into agricultural, pasture, and timber land, and provides for a tabulated statement of the lands of each county, showing certain conditions of each section (Id. § 3), and then directs that when the tabulated statement shall have been forwarded to the surveyor of the county or land district, and the board shall have designated some one to represent the state in the disposition of the land in such county or land district, and notice of such facts shall, under direction of the board, have been published in not more than three newspapers of the state and shall have been published, under direction of the person authorized to sell, for 30...