Metzler v. Johnson

• Decision Date: 25 October 1892
• Citation: 20 S.W. 1116
• Court: Texas Court of Appeals
• Parties: METZLER <I>et al.</I> v. JOHNSON.

20 S.W. 1116

METZLER et al. v. JOHNSON.

Court of Civil Appeals of Texas.

October 25, 1892.

Appeal from district court, Archer county; P. M. STINE, Judge.

Trespass to try title by J. O. Johnson against Albert Metzler and another. From a judgment in plaintiff's favor, defendants appeal. Affirmed.

The other facts fully appear in the following statement by HEAD, J.:

Conclusions of fact: On December 17, 1887, one George G. Koenig forwarded his application, affidavit, obligation, and first payment to purchase section 14, block 1, containing 640 acres, of the public school land, under the act of 1887, providing for its sale. This affidavit, application, and obligation were received by the commissioner of the general land office, and the land awarded to Koenig, to take effect as of the date aforesaid. Koenig's application and affidavit represented himself as an actual settler, and stated that he desired to purchase the land for a home, in compliance with the provisions of the act. The verdict of the jury, as we think, upon sufficient evidence, establishes that Koenig was not a settler within the meaning of the law, and did not purchase for the purpose of making the land his home. Appellant Metzler claimed under Koenig. In 1888, appellee, Johnson, actually settled upon the land for the purpose of making it his home, as established by the verdict of the jury upon sufficient evidence, and attempted to purchase the same, under the law, in good faith, for a home. Johnson forwarded all necessary papers to the commissioner of the land office, and his first payment to the treasurer; these papers being in form in compliance with the law under which he was seeking to purchase. The commissioner declined to award him the land, because of the previous sale to Koenig, and directed the treasurer to return appellee's money to him which was done. Appellee has been in possession of the land, living thereon, and cultivating it, as a home, ever since he settled thereon as aforesaid, and in February, 1889, filed his petition in the form of trespass to try title against appellant Metzler, and thereafter made Koenig a defendant. The case was submitted by the court to the jury upon the issue as to whether or not Koenig in good faith was a settler upon the land, and purchased the same for a home, within the meaning of the law. Verdict and judgment were rendered in favor of appellee upon this issue, from which this appeal is prosecuted.

R. F. Arnold and Walton, Hill & Walton, for appellants. F. E. Dycus, for appellee.

HEAD, J., (after stating the facts.)

From the foregoing findings of fact it will be seen that the first and most important question for us to decide is as to whether or not the fact that Koenig did not in good faith intend the land in controversy as a home, but was seeking to acquire it in fraud of the law, which only allowed sales to be made to actual settlers, could be taken advantage of by appellee after Koenig's obligation and first payment had been accepted by the commissioner of the general land office, and before a forfeiture had been declared against him by the proper authorities. In other words, are the qualifications of a proposed purchaser of public school lands under the act of 1887, and the subsequent compliance with the terms of his purchase as to the three years' occupancy, solely question between such purchaser and the state, or can they be inquired into before the issuance of the patent by others who may wish to become bona fide purchasers in compliance with the terms of the law? We have had great difficulty in solving this question to our satisfaction. A long line of decisions in this state has settled the law to be that, where the state has issued a grant, it alone can ordinarily have a forfeiture declared for a failure to comply with the terms of the grant. Luter v. Mayfield, 26 Tex. 325; Bowmer v. Hicks, 22 Tex. 162; Johnston v. Smith, 21 Tex. 729; and numerous other cases. And in quite a recent case the subject of the forfeiture of a charter granted a railroad by the state has been under investigation by our supreme court, and the familiar principle affirmed that a cause of forfeiture cannot ordinarily be taken advantage of by a third party until the state has acted in the matter. Railway Co. v. State, 81 Tex. 585, 17 S. W. Rep. 67. The difficulty, however, is to determine as to whether or not these principles apply to the case at bar, and we have arrived at the conclusion that they do not. The law under which this sale was made provides that "all sales shall be made by the commissioner of the general land office, or under his direction, and he shall prescribe suitable regulations whereby the purchasers shall he required to reside upon, as a home, the land purchased by them, for three consecutive years next succeeding the date of their purchase. Any person desiring to purchase land in accordance with the provisions of this act shall forward his application to the commissioner, particularly describing the land sought to be purchased, which application shall in all cases be accompanied with the affidavit of...