Lovett v. Simmons

• Decision Date: 25 June 1930
• Docket Number: No. 1202-5555.,1202-5555.
• Citation: 29 S.W.2d 1021
• Parties: LOVETT v. SIMMONS et al.
• Court: Texas Supreme Court

29 S.W.2d 1021

LOVETT v. SIMMONS et al.

No. 1202-5555.

Commission of Appeals of Texas, Section B.

June 25, 1930.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Trespass to try title by J. C. Lovett against J. A. Simmons and others. Judgment for defendants was affirmed by the Court of Civil Appeals [19 S.W.(2d) 116], and plaintiff brings error.

Reversed and rendered.

John B. Howard, of El Paso, Hill D. Hudson, of Pecos, and Brasted & Griffin, of Fort Worth, for plaintiff in error.

A. J. Clendenen, T. F. Morton, and James & Conner, all of Fort Worth, Y. P. Broome and W. P. McGinnis, both of Tulsa, Okl., and Scott, Brelsford, McCarty & Brelsford, of Eastland, for defendants in error.

LEDDY, J.

This was a suit of trespass to try title brought by J. C. Lovett against J. A. Simmons, and others holding under him, to recover the title to section 36, block 26, public school land in Winkler county.

The land involved was awarded to Lovett without condition of settlement on December 16, 1913, he executing to the state his obligation therefor on the deferred payment plan. In May, 1924, Lovett was in default of the payment of interest on his obligation in the amount of four annual payments for the sum of $74.88 each, aggregating $299.52, and at that time the commissioner of the general land office mailed a statement to him in which he was notified that, unless one year's interest of $74.88 was paid by August 1, his sale would be forfeited and the land put on the market September 1, 1924. No payment having been made by Lovett on August 20, 1924, the commissioner declared a forfeiture for nonpayment of interest, and indorsed on the wrapper containing the papers pertaining to the sale the words "Land forfeited August 20, 1924," and made a similar entry on Lovett's account.

On September 2, 1924, J. A. Simmons filed in the General land office his application to purchase this land. On September 10, Lovett wrote the following letter to the commissioner of the land office:

"Find enclosed exchange for $74.88 as int. on Section 36, block 26, Winkler County. If it's possible to redeem this I'd be glad to have you do so, as I received no notice of it forfeiting until the county clerk received notice. I thought it was due November 1. If this won't redeem the land, please write me just what may be done to redeem it."

The commissioner made no reply to this letter other than to direct the return of the $74.88 with the information that the land involved had been sold to another.

On October 3, 1924, the land was awarded to Simmons under his application filed on September 2, and subsequently he paid the balance due on the land, and patent covering the same was issued and delivered to him.

The sale to Simmons, under the decision of our Supreme Court in Weaver v. Robinson, 114 Tex. 272, 268 S. W. 133, was void because the land involved was advertised for sale prior to the forfeiture of Lovett's previous purchase and not afterwards.

Simmons, and those claiming under him, contend that, while the award made to him by the commissioner of October 3, 1924, was void under the decision of the Supreme Court in Weaver v. Robinson, supra, such sale was validated by article 5311b, known as the Validating Act, which was passed three months after the decision in Weaver v. Robinson was handed down, and they also contend that if for any reason the provisions of the Validating Act should not be held applicable to the sale to Simmons, his title was perfected under the provisions of chapter 57, Acts of 1921, subdivision 4 of article 5329, R. S. 1925, which provides that sales made without condition of settlement shall not be questioned by the state or any person after one year from the date of such sale.

It is only necessary to consider one of the contentions made by Lovett, which is that under article 5326, known as the Relief Act enacted by the Legislature in March, 1925, effective on June 19, 1925 (Acts 1925, c. 94), it was the duty of the commissioner to transmit a list of land which had been forfeited and not resold, which included the land in controversy, to the county clerk of Winkler county, and that Lovett, as owner of the land at the time of the forfeiture, was given a preferential right, within ninety days after such land had been revalued by the commissioner, to repurchase the same. That such duty having never been performed, he was thereby deprived of the right conferred upon him by the Legislature, hence the act of the commissioner in issuing an award and later a patent to Simmons was wholly void.

Simmons and his vendees answer this contention by asserting that the Relief Act was not applicable to the land in controversy for the reason that at the time of the passage thereof it was not "land remaining unsold" within the purview of said act.

The record shows that Lovett took other steps in his effort to reinstate his purchase, but we deem it unnecessary, in view of the disposition we have made of the case, to further detail the facts in reference thereto.

It must be conceded that both the Relief and Validating Acts are statutes designed to relieve from the rigors of forfeiture, hence they must be construed with the utmost liberality in favor of the owner of the land at the time of forfeiture. Cruzan v. Walker, Land Commissioner (Tex. Sup.) 26 S.W.(2d) 908; Anderson v. Neighbors, 94 Tex. 240, 59 S. W. 543; Mound Oil Co. v. Terrell, 99 Tex. 629, 92 S. W. 451; Oden v. Gates (Tex. Com. App.) 24 S.W.(2d) 381.

If, at the time the Legislature passed the Validating Act, there had been incorporated therein the provisions of the Relief Act, we think no reasonable doubt could have existed as to the intention of the law-making body to have accorded Lovett the dual privilege of reinstatement, or the right of purchase at the reappraisal value....