
    STATE v. ELZA.
    (No. 2871.)
    (Supreme Court of Texas.
    Nov. 20, 1918.)
    1. Public Lands <@=>173(21) — School Lands —Occupancy—(Statute—“And.”
    In Rev. St. 1911, art. 5424, providing that, if any purchaser shall fail “to reside upon and improve” in good faith school lands purchased by him, he shall forfeit the same to the state, the word “and” should be read “or.”
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, And.]
    2. Public Lands <&wkey;173(21) — School Lands —Improvements—Forfeiture.
    In suit to cancel defendant’s purchase of school lands for failure to erect improvements of the value of $300 within three years, as required by Rev. St. 1911, art. 5424, held, that defendant did not, by securing from lessee assignment of lease to land subsequently purchased, acquire title to fences erected by lessee, so that they could be counted as part of improvements.
    3. Public Lands &wkey;>173(21) —. School Lands — Improvements—Ownership.
    If fences were reserved by lessee of school lands when he assigned lease to defendant, they would not become defendant’s, so that they could be counted as part of improvements required by Rev. St. 1911, art. 5424, by virtue of his purchase of the land, prior to expiration of time for removal under article 5457, and lessee’s failure to remove within 60 days after expiration of lease as provided by said section; title not being in defendant but in the state thereafter.
    4. Appeal and Error <@=>1122(2) — Power to Make Findings — Reversal.
    The Court of Civil Appeals, though disapproving the trial court’s material finding of fact, has no power to substitute its finding and render judgment thereon, but can only reverse.
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Trespass to try title by the State against Spencer Elza. Judgment for the State was reversed by the Court of Civil Appeals (169 5. W. 633), and the State brings error.
    Judgment of the district court and of the Court of Civil Appeals reversed, and case remanded for trial in the district court.
    B. E. Looney, Atty. Gen., G. B. Smedley, Asst. Atty. Gen., Walter Gillis, of Del Rio, and J. D. Martin, of San Antonio, for the State.
    Charles Rogan, of Austin, W. Van Sickle, of Alpine, and Geo. M. Thurmond, of Del Rio, for defendant in error.
   GREENWOOD, J.

This controversy is over the right of the state to recover certain school land purchased by defendant in error, upon the ground that he did not within three years after his purchase erect on the land permanent improvements of the value of $300. The state recovered the land in the district court on the finding that defendant in error had failed to erect such improvements. The Court of Civil Appeals reversed the trial court’s judgment and rendered judgment for defendant in error, holding that he had fully complied with his obligation with respect to improvements; one of the justices dissenting from the action of the court in rendering judgment. Elza v. State, 169 S. W. 633.

The state’s right to recover depends upon the proper application to the facts of that portion of section 3 of the act of April 19, 1901, now article 5424, R. S., which reads:

“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 non-payment of interest, and such land shall be again upon the market as if no such sale and forfeiture had occurred.”

We cannot adopt the literal construction of this language, as urged by defendant in error, and require both a failure to reside upon the land and a failure to improve same in good faith before the purchaser incurs forfeiture. Under such a construction, the purchaser might never reside on school land, and yet he could acquire title, which would be manifestly contrary to the intent of the Legislature. We reconcile the intent and purpose of the act with its language by reading the word “or” in place of the word “and,” where the latte'r word first appears in the part of the act under consideration, and there can be no doubt, under these circumstances, that the law requires this substitution. Witherspoon v. Jernigan, 97 Tex. 105, 106, 76 S. W. 445; Slaughter v. Terrell, 100 Tex. 603, 604, 102 S. W. 399.

If certain fences should be included in the improvements erected by the defendant in error, then such improvements exceeded $300 in reasonable market value. Without such fences, defendant in error erected less than $300 worth of improvements. These fences were erected by L. Haley, when he held the land under lease from the state, and the Court of Civil Appeals rendered its judgment on the finding that defendant in error became the owner of the fences “by purchase and by limitation.”

The trial court expressly found that defendant in error did not purchase the fences. This finding was certainly not without support in the evidence, unless the view be correct, which seems to have been entertained by a majority of the Court of Civil Appeals, that four miles of the fences necessarily passed to defendant in error through the assignment by L. Haley of his lease of the lands then unsold. We cannot approve that view, because there was evidence, such as that of L. Haley, hereinafter recited, clearly authorizing the trial court to conclude that the fences were reserved by Haley, when he assigned the lease, as the trial court evidently concluded, when he found that defendant in erorr had. never purchased the fences. The testimony of L. Haley was that there might have been a written contract in regard to the purchase of these fences, as to which he did not recollect; that no bargain for the fences was dosed, before the lease was transferred; and that he would have moved the fences, within 60 days after the lease expired, if he had not been paid the price promised by defendant in error. Moreover, defendant in error pleaded that within 60 days after the sale of the lands to him he purchased the four miles of fences from Haley. The transfer of the lease is dated April 28, 1906, and he did not apply to purchase the lands on which these fences stood until May 17, 1906. Hence defendant in error expressly pleaded that Haley continued to own these fences subsequent to the date of transfer of the lease to him.

It is contended that even though the fences were reserved by Haley, yet they became defendant in error’s property by virtue of his purchase of the land, on Haley’s failure to remove them within the time allowed by article 5457, R. S., which provides that—

“All improvements made by lessees on lands leased by them are hereby declared to be personal property, which may be removed by such lessees on the expiration of their lease contracts ; and they shall have sixty days after such expiration in which to remove the same.”

It is conceded tjiat the fences became a part of the realty, when not removed in due time; but it is said that, since defendant in error had previously bought the land, the fences never became the property of the state, but instead passed to defendant in error. The error in this contention lies in the assumption that the title to the realty was in defendant in error when the fences became a part thereof.

The effect of the purchase of school land, with actual settlement required, was declared by this court, in an opinion of Justice Williams, in the case of Williams v. Finley, 99 Tex. 474, 90 S. W. 1087, in the following language:

“The title remains in the state, and the purchaser has only the right to acquire it by continued compliance with the conditions prescribed by the statute. Neither at the date of the institution of his action nor of the trial was it true, therefore, that Williams (the purchaser) had acquired the title of the state by merely paying or agreeing to pay for it the amount allowed defendant as a credit on the purchase money notes, 'but he still labored under other onerous conditions the value of the performance of which cannot be ascertained and measured in money.”

It would be absurd to say that, because the title to certain improvements would pass from the state to defendant in error upon his compliance with the express condition precedent that he erect improvements of spécified value on the land, he was relieved of the condition. The state, on Haley’s failure to remove the fences, if he had not made a sale thereof to defendant in error, as found by the trial court, held the title to both land and fences, subject to defendant, in error’s right, under his contract of purchase, to acquire the title by compliance with the obligations assumed by him to the state. One of those obligations was:

“Within three years after his purchase to erect permanent and valuable improvements on the land purchased by him, which improvements shall be of the reasonable market value of three hundred dollars.”

Without compliance with that obligation, defendant in error could never have title to the land, and hence could never have title to fences which became part of the land. The utmost liberality of construction, within reason, would not warrant treating improvements as erected by one who had nothing to do with their original construction, and who had never become invested with title thereto.

What has been said precludes our sustaining the claim by defendant in error that he acquired title to the fences by limitation. He could have had possession of the fences for only a few weeks when they were personalty. From the time the fences became part of the realty, the title, as we have shown, was in the state, subject to defendant in error’s contract of purchase, and the realty was necessarily held by defendant in error under the terms and conditions of his contract of purchase. Bourn v. Robinson, 49 Tex. Civ. App. 157, 107 S. W. 876.

Concluding that the fences did not pass to defendant in error, as assignee of Haley’s lease, by operation of law, and that defendant in error acquired no right thereto by limitation, and that the evidence was such as to warrant a finding either way with respect to whether defendant in error actually purchased the fences from Haley, it follows that the Court of Civil Appeals was not authorized to render judgment against plaintiff in. error ; for, as tersely expressed by Chief Justice Phillips, in Post v. State, 106 Tex. 500, 171 S. W. 708:

“The province of determining questions of fact is in the trial court. The Court of Civil Appeals has the power to set aside its finding and remand the cause for a new trial. Where the evidence is without conflict, it may render judgment. But where there is any conflict in the evidence upon a material issue, it has no authority to substitute its findings of fact for those of the trial court. Choate v. Railway Co., 91 Tex. 406, 44 S. W. 69.”

The action of the Court of Civil Appeals, in disapproving of the trial court’s material finding of fact, which was within the scope of its authority, requires that the judgment of the district court be reversed. Tweed v. Telegraph Co., 107 Tex. 254, 166 S. W. 696, 177 S. W. 957; Pollock v. Railway Co., 103 Tex. 70, 123 S. W. 408.

The judgments of the district court and of the Court of Civil Appeals are accordingly reversed, and the case is remanded for trial in the district court.

HAWKINS, J., did not sit in this case, being disqualified. 
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