Freels v. Walker

• Decision Date: 09 April 1930
• Docket Number: No. 1170-5488.,1170-5488.
• Citation: 26 S.W.2d 627
• Parties: FREELS v. WALKER, Commissioner of General Land Office et al.
• Court: Texas Supreme Court

Page 627

26 S.W.2d 627

FREELS v. WALKER, Commissioner of General Land Office et al.

No. 1170-5488.

Commission of Appeals of Texas, Section B.

April 9, 1930.

Original proceeding by Hugo Freels for a writ of mandamus against J. H. Walker, Commissioner of the General Land Office, and others, in which M. L. Davis intervened.

Writ of mandamus awarded to relator, and petition of intervener denied.

E. F. Smith, of Austin, and Alden, Latham & Young, of Chicago, Ill., for relator.

R. J. Randolph, of Austin, for intervener, M. L. Davis.

Robert Lee Bobbitt, Atty. Gen., and W. W. Caves, Asst. Atty. Gen., for respondent.

LEDDY, J.

In 1906 the state of Texas sold to Wade M. Smith, Jr., certain surveyed school land, being fractional section 92, block 1, certificate 3-546, W. & N. W. Railway Company survey, situated in Loving county, Tex., without reserving any mineral rights therein, the said Smith executing an obligation to the state for $559.49 for the unpaid purchase money for said section.

On August 20, 1924, the sale to Smith was forfeited for nonpayment of interest.

On August 25, 1924, co-respondent James E. Bowen filed with the county clerk of Reeves county (to which Loving county was then attached for judicial purposes) an application for a mineral permit on said section 92.

On August 29, 1924, relator and K. M. Regan and James W. McElvain, the vendees of Wade M. Smith, Jr., paid to the land commissioner all past due interest, and requested that the sale of section 92 to Wade M. Smith, Jr., be reinstated. Such payment was duly accepted by the land commissioner, and on August 29, 1924, he made reinstatement of the sale of said section 92 to Wade M. Smith, Jr.

On September 2, 1924, the said James E. Bowen filed in the general land office the application for a mineral permit that he had filed with the county clerk of Reeves county on August 25, 1924, and tendered therewith the $1 filing fee and ten cents per acre required under the mineral permit law, together with the affidavit required by such act.

On February 5, 1925, relator filed with the land commissioner his chain of title to 100 acres of said section designated as the northwest part of section 92, and the same was separated from the balance of said section, relator assuming the payment of the unpaid purchase money due the state of Texas for the 100 acres, and became obligated and bound to the state as a substitute purchaser for the 100 acres, and Wade M. Smith, Jr., was released from his obligation to the state for the unpaid purchase money due on said 100 acres in accordance with the terms of article 5329, R. S. 1925.

On September 3, 1926, the commissioner of the general land office, acting on the advice of the Attorney General, canceled and forfeited the sale to Wade M. Smith, Jr., for the alleged reason that his former reinstatement of said sale on August 29, 1924, was an error because the application of James E. Bowen filed with the county clerk on August 25, 1924, constituted an intervening right within the meaning of article 5326, R. S. 1925. At the time this order was made, there was no unpaid interest due the state by relator on said 100 acres of land.

The issuance of a writ of mandamus by the Supreme Court is sought to compel the commissioner of the general land office to make such orders and entries upon his records as will show that relator is the owner of said 100 acres of land according to the records of said office.

Relator presents a state of facts which entitles him to the writ of mandamus prayed for unless the filing by Bowen of the application for a mineral permit in the office of the county clerk of itself, without being filed in the general land office, constituted such intervening right as is described in article 5326, R. S. 1925.

The right to reinstate a forfeited purchase is covered by article 5326, R. S. 1925, which provides:

"In any case where lands have been forfeited to the State for the non-payment of interest, the purchasers, or their vendees, may have their claims reinstated on their written request, by paying into the Treasury the full amount of interest due on such claim up to the date of reinstatement, provided that no rights of third persons may have intervened."

Whatever right Bowen acquired by filing his application for mineral permit with the county clerk was under and by virtue of the Mineral Act of 1917, p. 158. The pertinent provisions of that act are as follows:

"Section 3: One desiring to obtain the right to prospect for and develop petroleum oil and natural gas that may be in any of the surveyed areas included herein shall file with the county clerk an application in writing giving a designation of same sufficient to identify it. The county clerk shall, upon receipt of one dollar as a filing fee, file and record the application and note the same on his record of surveys, etc."

"Section 5: When the Commissioner receives an application that was filed with the county clerk * * * one dollar filing fee and ten cents per acre for each acre applied for * * * he shall file same, and if upon examination * * * the application and field notes are found correct and the area applied for is within the provisions of this act the Commission shall issue to the applicant or his assignee a permit," etc.

A solution of the respective rights of the contending parties in this case is reached by determining what character of intervening rights the Legislature contemplated would be sufficient to prevent the landowner from availing himself of the privilege of reinstating a forfeited purchase.

The fundamental rule in construing a statute is to ascertain and give effect to the intention of the Legislature. In order to arrive at such intent, it is proper to obtain light from the established policy of the state as reflected by a general course of legislation upon the subject involved. Austin v. Cahill, 99 Tex. 172, 88 S. W. 542, 89 S. W. 552; Jewell v. Ithaca, 36 Misc. Rep. 499, 73 N. Y. S. 953.

Our state government, recognizing the great importance of having its vast domain of vacant land peopled with actual settlers, has, throughout all the years of its history, pursued a most liberal policy toward those willing to undergo the hardships and privations incident to perfecting title to lands purchased from it on conditions of actual settlement. To give the statute in question the construction that the mere filing of an application for a mineral permit in the office of the county clerk operates to prevent the landowner, whose purchase has been forfeited for nonpayment of interest, from reinstating his purchase would be a radical departure from the attitude of the state towards settlers upon its public lands, as indicated by a general course of legislation from the very foundation of our government. It would indicate that the Legislature intended to give the landowner very scant consideration, as his land when forfeited one day would be effectually lost to him by the filing with the county clerk of an application for a mineral permit on the following day.

Another salutary rule of construction is that where a statute is designed to relieve from the rigors of forfeiture, it should be most liberally construed to accomplish that purpose. Gulf Production Co. v. State (Tex. Civ. App.) 231 S. W. 124.

The Legislature has not defined the character of intervening rights, which it contemplated would be sufficient to prevent the reinstatement of a forfeited purchase. It is therefore the province of the courts to construe the meaning of such term, and in doing so we must apply the liberal rules of construction above announced. Tested by such rules, we conclude the character of intervening rights contemplated by the...