Erp v. Tillman

• Decision Date: 23 November 1910
• Citation: 131 S.W. 1057
• Parties: ERP et al. v. TILLMAN.
• Court: Texas Supreme Court

Page 1057

131 S.W. 1057

ERP et al. v. TILLMAN.

Supreme Court of Texas.

November 23, 1910.

Error from Court of Civil Appeals of First Supreme Judicial District.

Action by Sadie F. Erp and another against Y. E. Tillman. There was a judgment of the Court of Civil Appeals (121 S. W. 547) reversing a judgment for plaintiffs and rendering a judgment for defendant, and plaintiffs bring error. Judgment of the Court of Civil Appeals reversed and judgment of the District Court affirmed.

A. W. Marshall, for plaintiffs in error. Stevens & Pickett, for defendant in error.

WILLIAMS, J.

This case depends upon the legal effect to be given to a purchase by W. F. Erp of the land in controversy from the state as part of its school fund when set in opposition to a rejected subsequent application of Tillman to purchase the same land.

The facts out of which the questions arise are as follows: A tract of 529½ acres of public domain was surveyed in accordance with the statute regulating that subject for a person who purposed to buy it, and upon his failure to do so, was properly appraised and put upon the market as school land on the 9th day of August, 1902, at $3 per acre. The land in controversy, which is the west 240 acres of that tract, was regularly bought by application dated August 15, 1902, by one Chambers as an actual settler, who, on August 15, 1903, conveyed it to one Schmitz, taking his notes for the purchase money, and Schmitz was substituted in the land office as purchaser. The purchase money notes were assigned by Chambers to one at whose foreclosure sale Tillman afterwards purchased as stated below. On the 8th day of February 1905, W. F. Erp, who had bought the east 240 acres of the larger tract as an actual settler, proceeding on the assumption that the Chambers-Schmitz sale had been or would be canceled for abandonment, filed his application to purchase 240 acres of the 529½ acres as additional land to his east 240 acres, not otherwise describing the tract for which he applied. On the 14th day of February, 1905, the Commissioner reappraised the land in controversy at $5 per acre and sent the proper notice to the county clerk, and on the 16th wrote Erp that his application had been suspended because of the Chambers-Schmitz sale, but that, if that sale should be canceled in the near future, his application could be further considered, provided he would designate the part of the 529½-acre tract for which he applied. On March 25, 1905, the Commissioner canceled the Chambers-Schmitz sale for abandonment and on the same day sent proper notice to the county clerk of the fact and that the land was again offered for sale, and, also on the same day, wrote Erp, notifying him of the cancellation, calling his attention to the letter of February 16th, and allowing 10 days in which Erp might comply therewith and informing him that unless that were done his application would be rejected. Without more appearing the Commissioner on April 5, 1905, awarded the land to Erp at $3 per acre on his application of February 8, 1905, sale to take effect from that date. A decree of foreclosure having been obtained against Schmitz on his notes given to Chambers, Tillman bought in the land at the sale on June 5, 1905. This action was brought June 1, 1906, by Mrs. Erp, to whom her husband had conveyed the land, joined by the latter, against Tillman; the petition, which was never amended, containing only the general allegations in trespass to try title. Tillman filed a pleading August 13, 1906, which is not in the record but which, according to recitals appearing, set up a cross-action to recover the land, as well as defensive matter. Thereafter, February 3, 1907, Tillman made application to buy the land, as an actual settler, at $5 per acre and his application was rejected by the Commissioner because of the sale to Erp. Tillman then, on March 8, 1907, amended his former pleading in this cause, the amendment containing a plea of not guilty to plaintiff's action and also a plea in reconvention to recover the land, alleging title and possession in the defendant and ouster by the plaintiff on June 1, 1906. To this plaintiffs pleaded not guilty.

Quite a number of questions arise upon these facts, which have been stated in the order of time in which they occurred, as conducive to a clear understanding of the case. There is now no contention that the cancellation of the Chambers-Schmitz sale was wrongful or that through it Tillman has any title. The questions are as to the sufficiency of the sale to plaintiff to defeat the subsequent effort of Tillman to buy and to constitute a title upon which to base a recovery in trespass to try title.

The first which we shall consider is whether or not the award to Erp was so made originally that it was then valid. It was based upon an application made on February 8th before the cancellation of the Chambers-Schmitz sale was made on March 25th, and hence when the application was made and for more than a month thereafter the land was not open to purchase. Adams v. Terrell, 101 Tex. 331, 107 S. W. 537. It follows that no right was acquired at the time of the filing of the application nor prior to that cancellation (Gracey v. Hendrix, 93 Tex. 26, 51 S. W. 846; Willoughby v. Townsend, 93 Tex. 80, 53 S. W. 581), and the question arises whether or not one was acquired by the action taken after the cancellation under the ruling in Hazelwood v. Rogan, 95 Tex. 295, 67 S. W. 80. The doctrines of the three cases last cited and of others following the one or the other were regarded by the Court of Civil Appeals as conflicting. We do not so consider them and it may help to a better understanding for us to re-state the two propositions on which those decisions respectively are based. Gracey v. Hendrix holds that an application to purchase school land at a price below that at which it has been appraised and offered for sale secures no right to the applicant; and that such an application, nothing further being done, does not afterwards constitute an acceptance of an offer to sell subsequently made for a price below that stated in it. Hazelwood v. Rogan establishes a proposition which is equally clear although the application of it under differing circumstances sometimes gives rise to questions, mainly of fact, which require close discrimination. It is that one who has filed an application which is premature and therefore ineffectual to secure a right because the land cannot then be bought, yet has the right to make application when the proper time has come, and, under proper circumstances, this may consist in the use for that purpose of papers already prepared and on file and the payment already in the proper hands. We make the qualification, "under proper circumstances," because it is not held in Hazelwood v. Rogan, has never been held, and could not properly be held, that an application, which has no effect when filed, because the land is not open to purchase, must yet, as a matter of course and under all circumstances, be treated as one made and operating after the land has come on the market if there be no intervening right. The mere statement of the propositions which lie at the foundations of these cases shows there is no conflict between them, and it is only on the supposition that the latter case goes to the extent last indicated that even a theoretical inconsistency would arise. But it may be answered that, while the legal doctrines may not conflict, there was no good reason for a distinction in the facts of the two cases and that they should have been governed by the same rule. Let us briefly examine those facts to see if there were substantial differences which constituted just ground for different judgments, remembering that we are not to apply any rule of law as if it were a senseless and spiritless formula of words, but that, as Chief Justice Hemphill expresses it, "all rules of practice and principles of law must have a reasonable construction and be made to harmonize with other rules and principles equally binding." Henderson v. Kissam, 8 Tex. 57.

In Gracey v. Hendrix, while land was offered for sale at $2 per acre, Hendrix filed his application in the land office to buy at $1.50 per acre. Three days afterwards the valuation was reduced to $1 and nothing further appears to have been done with that application until it was rejected by the Commissioner after the lapse of more than a month. Certainly it ought not to have been held under these bare facts that the Commissioner should have treated the application as one preferred and insisted on, as an acceptance of the last offer to sell at a different, though lower, price than that stated in the paper. As was held, in substance, it was no part of his function by his own action to convert into a valid acceptance that which was none when made and which the applicant had never in any way changed, or showed his purpose to use as a new one. The Commissioner could not act for the other party and assume that he was still offering $1.50 per acre when the land could be bought for $1 per acre. Another decision, more like Hazelwood v. Rogan, refusing to hold that an application made at a time when the land was not on the market had been so employed after it was as to entitle it to be treated as a new application then preferred, is Boswell v. Terrell, 97 Tex. 259, 78 S. W. 4. The same theory controlled Willoughby v....