Slaughter v. Cooper

• Decision Date: 22 May 1909
• Citation: Slaughter v. Cooper, 121 S.W. 173, 56 Tex.Civ.App. 169 (Tex. App. 1909)
• Parties: SLAUGHTER v. COOPER.
• Court: Texas Court of Appeals

121 S.W. 173

SLAUGHTER v. COOPER.

Court of Civil Appeals of Texas.

May 22, 1909.

Rehearing Denied June 26, 1909.

Appeal from Martin County Court; Bailey Anderson, Judge.

Action by J. H. Cooper against R. L. Slaughter to recover a payment made on land, the sale of which to Slaughter by the state was forfeited. From a judgment for plaintiff, defendant appeals. Affirmed.

For former appeal, see 107 S. W. 897.

Caldwell & Whitaker, for appellant. A. L. Green, S. J. Isaacs, and Graham B. Smedley, for appellee.

SPEER, J.

This is the second appeal in this case; the opinion in the former appeal having been delivered by the Court of Civil Appeals for the Sixth district and reported in 107 S. W. 897. A reference to that opinion will disclose the nature of the case. While the cause is now to be affirmed, yet we deem it proper to say in passing that we are not quite prepared to assent to the rule announced by Mr. Justice Levy in that opinion that "the title to the land in this case had not so far passed out of the state as to make the land the subject-matter of private contract between appellant and appellee, and to create the relation of vendor and vendee as to the land itself." The cases of Lamb v. James, 87 Tex. 485, 29 S. W. 647, and Rayner Cattle Co. v. Bedford, 91 Tex. 642, 44 S. W. 410, 45 S. W. 554, are cited for the holding, and the reason for this announcement is that the lands involved were considered to be a part of the public domain. But we are inclined to the view that where, as here, the state through her regularly authorized officer has made an award of public lands to one authorized to purchase, thereafter the land has so far passed out of the state as to authorize its sale by such awardee, thereby creating between himself and his purchaser the relation of vendor and vendee, and, that possession accompanying such transfer, the purchaser could not thereafter successfully plead a total failure of consideration upon the forfeiture of his vendor's title. The rule first announced in Lamb v. James and afterward explained in Rayner Cattle Co. v. Bedford, and still later again explained in Williams v. Finley, 99 Tex. 468, 90 S. W. 1087, authorizing the plea of failure of consideration where the land, the subject-matter of contract, is a part of the public domain, does not, we think, extend to a case like this.

A ruling of the court which appears to present error was made, however, in admitting, over the objections of appellant, the certified copy of Slaughter's application and obligation containing the indorsement: "Forfeited for failure to reside upon and improve the land as required by law, November 17, 1905. John J. Terrell, Commissioner." If this indorsement was one required of the commissioner by law, proof of the entry no doubt would be permitted under the well-established rules of evidence, but if it is the mere ex parte statement of the commissioner, made without any express authority of law, it should not be. Article 4218l, Sayles' Ann. Civ. St. 1897, provides that: "If upon the first day of November 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," etc. It also provides: "And if any purchaser shall fail to reside upon and improve in good faith the land purchased by him, he shall forfeit said land and all payments made thereon to the state, in the same manner as for nonpayment of interest, and such land shall be again for sale as if no such sale and forfeiture had occurred." And the Supreme Court has construed this provision to impose upon the commissioner the duty of declaring a forfeiture for a failure to reside upon and improve the land. Bates v. Bratton, 96 Tex. 279, 72 S. W. 157. But the lands in question were originally sold under, and the decision of the question must therefore be controlled by, the provisions of Gen. Laws 1901, p. 294, c. 125, § 3. The law is there made to read: "If any purchaser shall fail to reside upon and improve in good faith the land purchased by him, as required by law, he shall forfeit said land and all payments made thereon to the state, to the same extent as for the nonpayment of interest, and such land shall be again upon the market, as if no such sale and forfeiture had occurred, and all forfeitures for nonoccupancy shall have the effect of placing the land upon the market without any action whatever on the part of the Commissioner of the General Land Office." This provision abundantly evidences the intention of the Legislature to declare that action by the commissioner should not be necessary to work a...