Lewis v. Heath
| Decision Date | 28 November 1928 |
| Docket Number | (No. 2217.) |
| Citation | 12 S.W.2d 641 |
| Parties | LEWIS et al. v. HEATH. |
| Court | Texas Court of Appeals |
E. C. De Montel and W. H. Sanford, both of Wichita Falls, for plaintiff in error.
N. R. Morgan, of Seminole (Garland & Yonge and Cecil Rotsch, all of Lamesa, of counsel on rehearing only), for defendant in error.
This is an action in the ordinary form of trespass to try title by the appellants Lewis and Brearley, against appellee Heath, to recover section 38, block G, in Gaines county. The case was tried without a jury and judgment rendered in favor of the defendant. Findings and conclusions were not filed by the trial court, and the record does not disclose the theory upon which the judgment was based. The facts are undisputed. There was offered in evidence by the plaintiffs, without objection, a certificate by the chief clerk and acting commissioner of the general land office certifying that the papers, documents, and records of said office show that the land in controversy was awarded to Heath January 10, 1917, at $7.54 per acre, as his home tract, classified as mineral and agricultural, and appraised at $6 per acre; that Heath made the required proof of occupancy and improvements, and certificate thereof issued February 21, 1920; that the section was forfeited for nonpayment of interest August 20, 1924, and thereafter awarded appellant Lewis, October 4, 1924, "on his application filed in this office 2nd September, 1924," at $6.11 per acre, without condition of settlement, classified as mineral and grazing, appraised at $5 per acre; that Lewis conveyed the southwest one-fourth of said section 38 to appellant Brearley, June 22, 1925; "that each of said tracts was cancelled 21st September 1925, account erroneous sale, the land not having been advertised after forfeiture, (Weaver vs. Robison, 268 SWR 133), and the sale of said section 38 to E. W. Heath reinstated on 21st September, 1925, he having paid the interest on said tract to 1st November 1924."
The certificate of the land commissioner shows some other facts which have no bearing upon the rights of the parties and need not be stated.
The sale of the land to Lewis was invalid under the ruling of the Commission of Appeals in Weaver v. Robison, 114 Tex. 272, 268 S. W. 133, but the fourth section of chapter 130, p. 332, Acts Thirty-Ninth Legislature, article 5311b, R. S., effective March 28, 1925, reads:
"In cases where public free school and asylum land has been advertised as being subject to forfeiture for nonpayment of interest and to be forfeited and canceled and come on the market for sale at some future sale date and such land was declared forfeited and the sale canceled on the records of the General Land Office and sale awards issued upon applications filed at such sale date, and said sale award has been held by the Supreme Court to be void and all other sale awards which may be void or voidable or the titles to which may have become defective from any cause, are hereby validated, and when the said land shall be fully paid for together with payment of all fees it shall be patented; provided in cases where the sale award of the land advertised as aforesaid has not stood one year the owner of said land at date of forfeiture shall have the right to apply to the General Land Office for a re-instatement of said former sale upon the payment of all past due interest at any time within six months after the taking effect of this Act."
The effect of this act was to validate the sale to Lewis subject to the reinstatement right of Heath, as contained in the proviso of the act.
The fourth section of chapter 163 of the Acts of the Thirty-Sixth Legislature 1919, Regular Session (article 5312, R. S. 1925), provides:
The certificate of the land commissioner heretofore referred to shows that Lewis' application was filed in the land office September 2, 1924. Therefore, on September 2d, 1925, the sale to him had stood for one year, because under the quoted section of chapter 163, Acts Thirty-Sixth Legislature, the sale to him was effective from September 2, 1924.
Under section 4 of chapter 130, Acts of the Thirty-Ninth Legislature, art. 5311b, quoted above, Heath, as against Lewis, had no right to have the former sale to him reinstated after the subsequent sale to Lewis had stood for one year. The certificate of the chief clerk and acting commissioner, above noted, does not show upon what date Heath paid his delinquent interest and applied to have his purchase reinstated. Under the law to which we have referred, he must have made the application and paid the interest prior to September 2, 1925. We find in the statement of facts a letter offered in evidence by appellee Heath, dated September 4, 1925, from the acting land commissioner, to appellees' attorney, as follows:
The defendant Heath testified:
From the letter and this testimony of Heath it is apparent he did not pay the interest and apply for reinstatement until subsequent to September 2, 1925. Therefore, under the Act of the Thirty-Ninth Legislature, he had lost his right to reinstatement as against Lewis. Heath, having failed within a year from the date of the sale to Lewis to apply for reinstatement and pay the delinquent interest, the act of the land commissioner in forfeiting the sale to Lewis was unauthorized and ineffective.
Appellants' first assignment and proposition raising this question are sustained.
The second assignment presents the proposition that the certificate of the commissioner shows that when Heath's purchase was reinstated on September 21, 1925, he did not pay interest to that date, but only to November 1, 1924, the previous interest-paying date under article 5312, R. S. Appellants' contention is that under article 5311b, especially when that is read and construed in connection with article 5326, R. S., the payment of interest to November 1, 1924, was insufficient; that all interest to September 21, 1925, should have been paid, and the action of the commissioner, reinstating Heath upon an insufficient interest payment, was unauthorized and ineffective against the intervening rights of appellants.
In our opinion this assignment raises a serious question, but it is unnecessary to pass upon the same, in view of the ruling upon the first assignment.
The above reflects the view of the majority as to the proper disposition to be made of the appeal, but it is proper we should indicate our reasons for not adopting the views expressed in Associate Justice Walthall's dissent. The general rules of law announced in the dissent are of course recognized.
Nor do we doubt that when the commissioner undertook to forfeit, on August 20, 1924, the previous award to Heath, such forfeiture was ineffective and Heath did not lose title, unless the commissioner made the indorsement and entry required by article 5423, Complete Texas Statutes 1920, quoted in the dissent. That is settled by Chambers v. Robison, 107 Tex. 315, 179 S. W. 123, also quoted in the dissent.
The certificate of fact by the acting commissioner was properly admissible in evidence in proof of the facts therein stated. Article 3722, R. S.; Talley v. Lamar Co., 104 Tex. 295, 137 S. W. 1125; White v. Pyron (Tex. Civ. App.) 62 S. W. 83.
It was admitted without objection and appellee in his brief expressly recognized the competency and sufficiency of the certificate as proof of the facts therein stated, for he says: "The certified statement of the commissioner of the Land Office is admitted in all of the courts and taken as conclusive in the examination of titles to unpatented public school lands in Texas."
Under article 5423, supra, it was made the duty...
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Faulkner v. Lear, 4880
...regular in all respects, since such was the act of an official of the State, done in the execution of his official duties. Lewis v. Heath, Tex.Civ.App., 12 S.W.2d 641; Clements v. Robison, 111 Tex. 449, 239 S.W. 902; Weatherly v. Jackson, 123 Tex. 213, 71 S.W.2d Since the Taylor sale was sh......