Fristoe v. Blum

• Decision Date: 30 May 1898
• Citation: 45 S.W. 998
• Parties: FRISTOE v. BLUM et al.
• Court: Texas Supreme Court

45 S.W. 998

FRISTOE v. BLUM et al.

Supreme Court of Texas.

May 30, 1898.

Error to court of civil appeals of Third supreme judicial district.

Trespass to try title by Leon & H. Blum against J. W. Fristoe. From a judgment of the court of civil appeals (42 S. W. 656)

reversing a judgment for defendant, he brings error. Reversed.

Perryman & Patterson and D. T. Averitt, for plaintiff in error. Guion & Truly, for defendants in error.

BROWN, J.

Prior to November 23, 1882, I. M. Bennick was in the actual possession, in good faith, of the land in controversy, it being section No. 278 Houston & Texas Central Railroad Company survey in block No. 1-A in Coke county, Tex., located as an alternate section for the public free schools of Texas under the law granting lands to railroads. On October 8, 1883, I. N. Bennick made application to purchase said section in the form prescribed by the Acts of the legislature of Texas of 1883, "to provide for the classification, sale, and lease of lands heretofore or hereafter surveyed and set apart for the benefit of the common school, university, and deaf and dumb asylum fund of the said state." Bennick made proper proof of occupancy. The land was duly appraised under the law of 1883, at one dollar per acre, prior to Bennick's application. The land was properly awarded to I. M. Bennick on his application November 23, 1883, at the price of $1 per acre. He made the first payment of $21.33, principal, and interest, $51.67. September 2, 1891, Bennick and wife, in due form of law, conveyed the land to D. P. Gay, by deed which was recorded September 8, 1891. On December 10, 1894, Gay conveyed the land to Leon & H. Blum, by deed recorded December 21, 1894. The interest upon the purchase money of the land under Bennick's purchase was not paid to the state for the year ending January 1, 1892; and on the 28th day of May, 1895, the commissioner of the general land office declared the contract of purchase forfeited, and the land was again appraised under the law, which appraisement was recorded in the office of the clerk of the county court of Coke county on the 2d day of September, 1895, and the commissioner placed the land upon the market for sale. J. W. Fristoe applied to purchase the land on November 18, 1895, as an actual settler upon the land, under the act of the legislature of the state of Texas approved April 16, 1895; and the commissioner of the land office awarded the land to the said Fristoe on his application, on the 24th day of December, 1895. Fristoe has made all payments of interest and principal required by law since the time of the award made to him. Leon & H. Blum filed this suit in the district court of Coke county on November 11, 1896, to recover from Fristoe the 640 acres of land awarded in the first place to I. M. Bennick, under whom Leon & H. Blum claimed as above shown. The case was tried without a jury, before the court, which gave judgment for the defendant Fristoe, from which appeal was taken; and the court of civil appeals for the Third supreme judicial district reversed the judgment of the district court, and rendered judgment in favor of Leon & H. Blum for the land.

The sole question presented by this writ of error is: Was the commissioner of the general land office authorized by law to declare the forfeiture of the contract of purchase made by Bennick from the state of the section of school land involved in this suit? The defendants in error urge the following objections against the existence of the power at the time the forfeiture was declared: (1) That the act of February 23, 1885, entitled "An act to prevent the forfeiture of the rights of purchasers of public free school, university or asylum land," repealed all power which had been vested in the commissioner of the land office to declare such forfeiture, and especially it repealed section 10, as amended, of the act of the same session of the legislature approved February 16, 1885; (2) that section 11 of chapter 99 of the Laws of the 20th Legislature (page 83) does not apply to contracts made anterior to its passage, the 1st day of April, 1887; (3) that, if the eleventh section of the law of April 1, 1887, was intended by the legislature to apply to antecedent contracts, it is unconstitutional, because it would be retroactive, and would violate the obligation of contracts of purchase made prior to that time.

A clear understanding of the relation in which the state stands to the purchasers in these contracts will greatly facilitate a proper solution of the questions upon which this case depends. It is well settled that so long as the state is engaged in making or enforcing laws, or in the discharge of any other governmental function, it is to be regarded as a sovereign, and has prerogatives which do not appertain to the individual citizen; but when it becomes a suitor in its own courts, or a party to a contract with a citizen, the same law applies to it as under like conditions governs the contracts of an individual. State v. Kroner, 2 Tex. 492; State v. Purcell, 16 Tex. 305; Green v. State, 73 Cal. 32, 11 Pac. 602, and 14 Pac. 610; Carr v. State, 127 Ind. 204, 26 N. E. 778; State v. Snyder, 66 Tex. 700, 18 S. W. 106; State v. Cardozo, 8 S. C. 79; Patton v. Gilmer, 42 Ala. 548; Danolds v. State, 89 N. Y. 36; People v. Stephens, 71 N. Y. 549; People v. Canal Com'rs, 5 Denio, 401; Coleman v. State, 134 N. Y. 564, 31 N. E. 902; State v. Dennis, 39 Kan. 509, 18 Pac. 723; Morton v. Comptroller, 4 S. C. 448; Davis v. Gray, 16 Wall. 203; Chicago & N. W. Ry. Co. v. U. S., 104 U. S. 680. In Carr v. State, 127 Ind. 204, 26 N. E. 778, the supreme court of that state said: "As there is a perfect contract, the state is bound to perform it according to its legal tenor and effect, and to redeem the pledge it has declared to be irrevocable. In entering into the contract, it laid aside its attributes as a sovereign, and bound itself, substantially as one of its citizens does when he enters into a contract. Its contracts are interpreted as the contracts of individuals are, and the law which measures individuals' rights and responsibilities measures, with few exceptions, those of a state, whenever it enters into an ordinary business contract." The court of appeals of the state of New York, in the case of People v. Stephens, 71 N. Y. 549, used the following language: "The state, in all its contracts and dealings with individuals, must be adjudged and abide by the rules which govern in determining the rights of private citizens contracting and dealing with each other. There is not one law for the sovereign and another for the subject; but when the sovereign engages in business and the conduct of business enterprises, and contracts with individuals, although an action may not lie against the sovereign for a breach of the contract, whenever the contract, in any form, comes before the courts, the rights and obligations of the contracting parties must be adjusted upon the same principles as if both contracting parties were private persons. Both stand upon equality before the law, and the sovereign is merged in the dealer, contractor, and suitor." The supreme court of South Carolina clearly announced the same doctrine in the case of Morton v. Comptroller, in the following language: "When a sovereign state enters into a contract or bargain with an individual, it assumes to be bound, in all particulars, as an individual under like circumstances would be bound, by what is expressed or properly implied by the terms of such contract. The measure of its obligation is that applied to individuals." The authorities cited above fully justify the conclusion that the contract of Bennick for the purchase of the land from the state bound the state and Bennick each to the same extent as if it had been made between two private individuals. Bennick had all of the rights that he would have had if the vendor had been a citizen instead of the state. So long as he paid the purchase money and interest, the state could not deprive him of the land. He was within the protection of the constitution. On the other hand, the state, by the common law, had the right as a vendor, upon the failure of Bennick, to perform his part of the contract to rescind the sale made to him, and resume its control of the land. The contract was purely executory, and the superior title remained in the state the same as it would have remained in the individual under like circumstances.

For the purposes of this case, we accept the proposition that between February 19, 1885, and the passage of the act of April 1, 1887, there was no law in force which empowered the commissioner of the general land office to declare the forfeiture of this class of contracts. For the authority of the commissioner of the general land office to declare a forfeiture of Bennick's contract of purchase because of his failure to pay the interest, we must look to the eleventh section of "An act to provide for the sale of lands heretofore or hereafter surveyed and set apart for the benefit of the public free schools," etc., approved April 1, 1887. That section, so far as it affects this question, is in the following words: "If upon the first day of August of any year the interest due on any obligation remains unpaid, the commissioner of the general land office shall indorse on such obligation `Land forfeited,' and shall cause an entry to that effect to be made on the account kept with the purchaser, and thereupon said land shall 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 this act or any future law." The words "any obligation" are of common use, and must be taken according to their natural, plain, and ordinary signification, unless some reason appears why a different meaning should be attributed to them. The language used would certainly include all...