Patton v. Terrell

• Court: Texas Supreme Court
• Writing for the Court: Williams
• Citation: Patton v. Terrell, 105 S.W. 1115, 101 Tex. 221 (Tex. 1907)
• Decision Date: 18 December 1907
• Parties: PATTON v. TERRELL, State Land Com'r.

105 S.W. 1115

PATTON v. TERRELL, State Land Com'r.

Supreme Court of Texas.

December 18, 1907.

Mandamus, on the relation of J. M. Patton, against J. J. Terrell, state land commissioner. Writ granted.

W. T. Andrews, D. W. Doom, and D. H. Doom, for relator. Wm. E. Hawkins, Asst. Atty. Gen., for respondent.

WILLIAMS, J.

Relator seeks a mandamus from this court to the respondent upon the following facts condensed from the petition: One Cowley, as purchaser under the act of 1905, secured an award of the 8 sections of school land involved from the respondent on the 1st day of December, 1906. He made his settlement as required by the act referred to, and on the 2d day of February, 1907, made his affidavit thereof, which was forwarded to the land office, reaching there February 5, 1907. On the last-named date he executed, acknowledged, and delivered to relator a deed conveying the land; but, by mistake of the notary who wrote the deed and acknowledgment, both were dated February 4, 1907. Relator also settled on the land, and on May 10, 1907, filed the deed in the land office, and applied to have himself substituted for Cowley as purchaser, complying with the law for that purpose. The commissioner, seeing that the deed bore a date anterior to that of the filing of Cowley's affidavit of settlement, rejected relator's application, and canceled the sale in accordance with section 4 of the act of 1905. Laws 29th Leg. p. 161, c. 103. The mandamus is sought to compel a reinstatement of the sale. The answer of the commissioner does not in any way controvert the truth of these allegations, and we must take them as established for the purposes of this action by the verified petition, and the question to be decided is whether or not they entitle the relator to the relief prayed for.

The provision of the statute referred to upon which the cancellation is based is as follows: "A purchaser shall not transfer his land prior to his actual settlement thereon, and evidence of that fact filed as herein provided, and any attempt to so transfer by deed, bond for title, or other agreement, shall operate as a forfeiture of the land; * * * and when sufficiently informed of the facts which operate as a forfeiture, the commissioner shall note the fact of forfeiture upon the application," etc. The fact which operates as a forfeiture is not the filing of a deed bearing a date anterior to that of filing the affidavit of settlement, but the transfer or attempted transfer of the land in one of the methods mentioned prior to the...