Tillman v. Erp.

• Decision Date: 08 May 1909
• Citation: 121 S.W. 547
• Parties: TILLMAN v. ERP et al.
• Court: Texas Court of Appeals

Page 547

121 S.W. 547

TILLMAN v. ERP et al.

Court of Civil Appeals of Texas.

May 8, 1909.

On Motion for Rehearing, June 24, 1909.

Further Rehearing Denied October 7, 1909.

Appeal from District Court, Liberty County; L. B. Hightower, Judge.

Action by Sadie F. Erp and others against Y. E. Tillman. Judgment for plaintiffs, and defendant appeals. Reversed, and judgment rendered for defendant on rehearing.

Stevens & Pickett, for appellant. A. W. Marshall, for appellees.

REESE, J.

This suit was instituted on June 1, 1906, by W. F. Erp and wife against Y. E. Tillman, in the district court of Liberty county. The petition states an ordinary case of trespass to try title for the recovery of the west 240 acres of the C. A. Carson survey of 529½ acres of land. Defendant filed his original answer, which is not in the record, on August 13, 1906, and his first-amended answer, on which he went to trial, on March 8, 1907, wherein he pleaded general demurrer, general denial, and not guilty, and, by way of cross-action, set up his ownership and possession of the land and entry and ouster by plaintiffs on June 1, 1906, and prayed judgment for the land, rents, and damages. By supplemental petition filed February 17, 1907, plaintiffs demurred generally to defendant's cross-action, and pleaded not guilty. The case was tried without a jury, and judgment rendered for the plaintiffs, from which defendant appeals.

The case involved the validity of the sale of the land, a part of the public free school land of the state. The following is a correct history of the title as shown by the record evidence which is undisputed: Under the terms of the act of February 23, 1900, Chas. A. Carson made application for the survey of a tract of unsurveyed school land in Liberty county. Under the application field notes were made and returned to the General Land Office. The survey contained 529½ acres, and was designated by the Land Commissioner as survey No. 14 in the name of C. A. Carson. On June 11, 1902, the field notes were approved, and the land classified as agricultural, and valued at $3 per acre, and notice given to Carson allowing him 60 days to file his application to purchase. Carson died on June 11, 1900, having made no application, and on August 9, 1902, the Commissioner placed the land on the market as agricultural land, at a valuation of $3 per acre, having canceled Carson's claim. On August 15, 1902, W. F. Erp applied to purchase the east 240 acres of the tract as an actual settler, and on same day W. E. Chambers, as an actual settler, applied for 240 acres, and the land applied for was awarded by the Commissioner to the parties, respectively. August 15, 1903, Chambers sold the west 240 acres to Jno. S. Schmitz, taking his notes for $2,000, and Schmitz substituted himself to Chambers as an actual settler purchaser. The notes for $2,000 were assigned by Chambers, and under judgment and foreclosure thereon the land was sold and conveyed to the defendant, Tillman, on June 6, 1905. On February 8, 1905, Erp made application to the Land Commissioner to purchase 240 acres of survey No. 14, C. A. Carson, at $3 per acre, the price then fixed, as additional land to his home tract, being the east 240 acres of the survey. The application did not further describe the land applied for. On February 16, 1905, the Land Commissioner wrote to Erp as follows: "This is to advise you that your application * * * has been suspended for the reason that this land was sold to W. E. Chambers, and is now held by Jno. S. Schmitz as assignee. If this sale is canceled out in the near future, then your application can be further considered, provided that you designate what part of this survey you desire to purchase, as the entire survey contains 529½ acres, and you simply applied for 240 acres of same, without stating what part you desire." On February 14, 1905, the Commissioner revalued the land, placing the value at $5 per acre, and forwarded notice thereof to the county clerk of Liberty county, by whom it was entered upon the records of his office. On March 25, 1905, the Land Commissioner declared the sale to Chambers, Schmitz, assignee, forfeited for abandonment, making formal entry of such forfeiture as required by law, and by letter of the same date advised the county clerk of such forfeiture, and that the land was on the market. On the same day the Commissioner wrote to Erp as follows: "Referring to the matter of the attack upon the sale of W. E. Chambers, J. S. Schmitz, assignee, * * * I have to advise you that, the 30 days given Mr. Schmitz for filing rebuttal evidence having expired, and having heard nothing from him relative thereto, said sale is accordingly forfeited on this date. Referring to your application filed with the county clerk on the 8th day of February, 1905, and our letter to you regarding same on February 15, 1905, I have to advise you that unless you furnish this department with the information requested in said letter on the 15th ult., your application will be taken up and rejected, and you will be given 10 days from this date within which to furnish such information." On April 5, 1905, the Commissioner accepted the application of Erp filed February 8, 1905, and awarded him the land in controversy at $3 per acre, in accordance with his application, notifying him that the award was made as of February 8, 1905. The evidence does not show, so far as has been pointed out to us, or we have been able to find, whether Erp had amended or corrected his application so as to designate particularly the land he desired to purchase, as required by the Commissioner, prior to the award to him. Erp made the necessary payments, etc. On February 5, 1907, pending the suit, Tillman made application to purchase the land in controversy at $5 per acre, and tendered the necessary cash and notes required by law. This application was rejected, on account of the previous award to Erp. After the sale to W. F. Erp he conveyed the land to his wife, Sadie F. Erp.

By his assignments of error appellant assails the judgment on the ground that appellees, who were plaintiffs below, showed no title upon which they were entitled to recover, and that, under the evidence he was entitled to judgment on his cross-action. Appellant's claim as to the want of title in appellees rests upon the following grounds: First. Appellee's application, made on February 8, 1905, conferred no right upon him, and the subsequent award to him by the Land Commissioner likewise conferred no right, for the reason that at the time said application was filed the land was not on the market, as the previous sale to Chambers, Schmitz, assignee, had not been declared forfeited as required by law. Second. That appellee's application was defective in failing to designate the land, and so continued until after March 25, 1905, when the land came on the market by the forfeiture of the previous sale to Chambers, and that when this defect was corrected by amendment of his application, the land had been revalued, and was on the market at $5 per acre, and the Commissioner had no authority to accept Erp's application to purchase at $3 per acre.

It has become the settled construction of the act of 1895, regulating the sale of public free school lands, that land sold to an actual settler, subject to forfeiture for failure to comply with the condition of three years' occupancy, is not forfeited to the state, with the effect of being again upon the market for sale, by the mere fact of abandonment of the purchaser, but that to have that effect, it is necessary that the Land Commissioner make formal declaration of such forfeiture by the indorsement "Land forfeited" on the purchaser's obligation. Article 4218l, Rev. St. 1895. Such is the uniform construction of the language of that act with regard to forfeitures, as well for nonpayment of interest as for noncompliance with the condition of settlement and occupancy. Bates v. Bratton, 96 Tex. 279, 72 S. W. 157; O'Keefe v. McPherson, 25 Tex. Civ. App. 313, 61 S. W. 534. The language of section 3 of the act of 1901, which was the law in force at the time of the sale to appellee, Erp (page 294, c. 125, § 3, Acts 1901), is slightly different, especially as containing the additional words "and all forfeitures for nonoccupancy shall have the effect of placing the land upon the market without any action whatever upon the part of the Land Commissioner." Comparing the language of the act of 1895 (article 42181, Rev. St. 1895) with that of the act of 1901, in the case of Adams v. Terrell, 107 S. W. 537, it was held by our Supreme Court that the same construction must be given to the language of the latter act; that is, that abandonment by an actual settler purchaser did not have the effect, ipso facto, to place the land at once upon the market, but such could only be done by the declaration of forfeiture by the Commissioner in the manner prescribed by the statute. It must be said for the learned judge that this decision was not rendered until after the trial of the case at bar in the district court.

It has also been the uniform construction of our laws regulating the sale of school lands that it is the acceptance of the offer made by the state, and the compliance by the applicant to purchase therewith, that constitute him a purchaser, and not the acceptance of his application by the Land Commissioner. Neither the acceptance nor rejection of his application by the Commissioner affects his right to the land, but if the purchaser has brought himself within the terms of the law, he is entitled to have his application accepted, so that he may be entered as a purchaser on the records of the Land Office and the Treasury Department, and these are valuable rights for the enforcement of which he may resort to the writ of mandamus, but such award is not in any sense essential to his right to the land. Hazelwood v. Rogan, 95 Tex. 303, 67 S. W. 80. And for the same reason, if the...