Weaver v. Robison

• Decision Date: 20 December 1924
• Docket Number: (No. 492-4060.)
• Parties: WEAVER et al. v. ROBISON, General Land Office Com'r, et al.
• Court: Texas Supreme Court

268 S.W. 133

WEAVER et al. v. ROBISON, General Land Office Com'r, et al.

(No. 492-4060.)

Commission of Appeals of Texas, Section B.

December 20, 1924.

Mandamus on the relation of A. V. Weaver and others against J. T. Robison, Commissioner of the General Land Office, and others. Writ issued.

Percy Spencer and Bledsoe & Pharr, all of Lubbock, and Chas. L. Black, of Austin, for relators.

G. B. Smedley, of Austin, amicus curiæ.

W. A. Keeling, Atty. Gen., and Weaver Moore, Asst. Atty. Gen., for respondents.

POWELL, P. J.

On July 5, 1906, section 448, block D, Yoakum county, Tex., was sold by the state of Texas to one Myrtle Hicks. At the time of its sale it was classified as "dry grazing" land, and appraised at $1.25 per acre. It was sold at that price. The purchaser paid one-fortieth of the purchase money, and executed her obligation for the balance of such unpaid purchase money. This land, through mesne conveyances, went into relators in this proceeding.

The interest due on this purchase on November 1, 1919, 1920, 1921, and 1922 respectively was not paid. Default had been made in interest payments for each of the four years. Therefore in May 1923 Commissioner Robison caused to be prepared a list of school lands which would come upon the market September 1, thereafter. This list included the section of land in suit; but the provisions therein with reference to this tract were as follows:

"Most of the land in this list is subject to be forfeited for nonpayment of interest, and such as may not be paid on will be forfeited and come on the market September 1, 1923, but that which may be forfeited can be redeemed by the payment of necessary interest before 10:00 o'clock a. m. September 4."

The advertised list contained hundreds of tracts of land, but the tract in suit, in its immediate place of listing, was described as being:

"Subject to forfeiture for nonpayment of interest, and, if not redeemed, will be on market September 1, 1923."

In cases of other tracts of land, it was stated that they were "formerly forfeited for nonpayment of interest, and, if not redeemed, will be on market September 1, 1923."

On August 31, 1923, the tract in suit was forfeited in exact accordance with the statutes and the file of papers in the case marked "land forfeited." The commissioner signed it officially. On the same day, but after this formal forfeiture, he classified the land as "mineral and grazing," and appraised it at $3 per acre. In the list aforementioned, the land in suit was listed as mineral and grazing land, and at the same value. In other words, the formal reclassification and revaluation entered after the forfeiture was the same as unofficially made at the time the advertisement was prepared about three months before the sale day. This unofficial classification was also printed in the advertised list in May.

As stated in the advertisement, September 2 was Sunday, and September 3 a legal holiday. Therefore the bids were opened at 10 o'clock a. m. September 4. Relators did not bid. But the land was sold to Anna Simmons, upon a bid lawful in every sense. She paid $3.30 per acre for it. The award was made September 18, 1923. Anna Simmons later sold the land to one H. F. Wood.

On or about October 19, 1923, relators tendered to the commissioner of the general land office all past-due interest on the original sale, and made application to the commissioner to have the original sale reinstated in their names. The commissioner refused this request, because he claimed the rights of Anna Simmons had intervened.

On October 29, 1923, upon proper petition therefor, the Supreme Court permitted the relators to file a petition for writ of mandamus against the commissioner of the general land office and Anna Simmons and H. F. Wood. Such petition was filed. The commissioner alone has filed an answer.

It was conceded by counsel for respondents in argument that relators would be entitled to be reinstated unless the sale to Anna Simmons was lawful and binding. This oral statement was made, because in his answer the commissioner contended that, in seeking reinstatement, relators had not tendered the deed from R. L. Merritt into them. But counsel for the commissioner stated they had, since preparing the answer, learned from the commissioner that he had agreed with counsel for relators to waive that requirement, and not urge the same as against the right to reinstate. In view of that fact counsel for the commissioner stated to the court that they wished to withdraw that portion of the answer and drop the matter. The commissioner was present in person, and agreed this was true. Therefore, as presented to us, relators are entitled to reinstatement, unless the sale to Anna Simmons was lawful. On the other hand, it is admitted by counsel for relators that the sale to her is entirely lawful and regular if article 5408 of our Revised Civil Statutes has been complied with. Consequently, we have but one question before us, and that is the construction of this article of our statutes as applicable to the instant case. And, more specifically still, the sole question is whether or not the advertisement of this land for sale and its classification as already set out by us was in compliance with the statute. It is admitted that, if the commissioner had forfeited the land in May, 1923, in accordance with the statute and in the mode provided therein, and thereafter before the next sale day reclassified and revalued the land, the advertisement would have been adequate and lawful. And, because of default in payment of interest, the commissioner was authorized to forfeit the land in May, 1923. But, since he did not so forfeit the land, but proceeded to advertise it for sale prior to forfeiture, relators contend that the advertisement was premature; that there can be no resale without lawful advertisement; therefore, the sale to Anna Simmons was unlawful and of no force or effect according to their contention. In determining the question at issue a brief history of our statutes with reference to the forfeiture and sale of public lands will probably be helpful.

Prior to 1897, and under the act of 1879 (Acts 1879, c. 28) the forfeitures for nonpayment of interest were to be enforced "by a proceeding in court, instituted upon the certificate of the commissioner showing such nonpayment. A copy of the judgment was to be filed in the treasurer's office, and he was to indorse the obligation `forfeited,' and send it to the land office, where it was thereafter to be kept." Brightman v. Comanche County, 94 Tex. 599, 601, 63 S. W. 858.

But, under the act of 1897 (Acts 1897, c. 37, § 1) we find the following, with reference to forfeitures:

"Be it enacted by the Legislature of the state of Texas: That if upon the first day of November of any year any portion of the interest due by any person to the state of Texas for land heretofore sold by the state of Texas, whether said lands be a part of the public domain or shall have been heretofore set apart for the public schools, university, or any of the other various state institutions, has not been paid, it shall be the duty of the land commissioner to indorse on the obligation for said lands, `lands forfeited,' and shall cause an entry to that effect to be made on the account kept with such purchaser, and thereupon said lands shall thereby be forfeited to the state, without the necessity of re-entry or judicial ascertainment, and shall revert to the particular fund to which it originally belonged, and be resold under the provisions of the existing law, or any future law; provided, the purchaser of said land shall have the right, at any time within six months after such indorsement of `lands forfeited,' to institute a suit in district court of Travis county, Texas, against the commissioner of the general land office, for the purpose of contesting such forfeiture and setting aside the same, upon the ground that the facts did not exist authorizing such forfeiture, but if no such suit has been instituted as above provided, such forfeiture of the commissioner of the general land office shall then become fixed and conclusive."

The act of 1897, as quoted, is still the law, under the act of 1919, except that the six months allowed for filing suit in Travis county to test the forfeiture so made is limited to those who purchased land prior to August 20, 1897, and except also that the act of 1919 recognizes the force and effect of Judge Williams' opinion in the case of Brightman v. Comanche County, 94 Tex. 599, 63 S. W. 857, and two later decisions of our Supreme Court, by providing that the forfeiture shall be made by entering the words stated on the "wrapper containing the papers."

The acts of 1897 (Gen. & Sp. Laws 1897, p. 184) and 1919 each contain the following provision:

"In any cases where lands have been forfeited to the state for the non-payment of interest, the purchasers, or their vendees, may have their claims reinstated on their written request, by paying into the treasury the full amount of interest due on such claim up to the date of reinstatement; provided, that no rights of third persons may have intervened. In all such cases the original obligations and penalties shall thereby become as binding as if no forfeiture had ever occurred."

It is by virtue of the latter provision that relators ask this reinstatement.

With reference to the forfeiture section of the act of 1897, Judge Williams, in the opinion above referred to, said:

"That the mere default of the purchaser does not, ipso facto, put an end to the contract, but that the commissioner must exercise the authority given by the statute at the time and in the manner prescribed has also been decided."

Again, we quote from his decision as follows:

"As we have seen, the statute distinctly and imperatively required the commissioner to forfeit all sales when interest was not paid as required, thus forbidding him to make any exception."

With...