
    (109 Tex. 540)
    KIRBY et al. v. CONN.
    (No. 2574.)
    (Supreme Court of Texas.
    May 28, 1919.)
    Public Lands <&wkey;173(5) — Sale oe Timbee— Settling op Lands — Statute.
    Under Acts 27th Leg. (1901) c. 125, an award of the timber on public lands carried with it the right of purchase of the land within five years if the timber was not sooner removed on condition of actual settlement. In 1907, the requirement as to actual settlement was abrogated. Held, that plaintiff, to whom the timber was awarded under said act, and who within the five-year period, but after 1907, was awarded the land without the condition of aetual settlement, was entitled to the same as against a previous purchaser of other public lands whose conveyance, made in 1006, erroneously included the lands acquired by plaintiff.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Trespass to try title by R. C. Conn against John II. Kirby and others. A judgment for plaintiff for the lands involved was affirmed by the Court of Civil Appeals (156 S. W. 232) and defendants bring error.
    Affirmed.
    • H. C. Howell, of Jasper, Terry, Cavin & Mills, of Galveston, and Andrews, Ball & Streetman, of Houston, for plaintiffs in error.
    Smith & Blackshear, of Jasper, and John B. Warren, of Houston, for defendant in error.
   PHILLIPS, C. J.

In 1904, under the Act of 1901 (Acts 27th Leg. c. 125), R. C. Conn was by the Commissioner of the General Land Office awarded the timber upon the north quarter of a section of public land. A timber deed in his favor was duly executed and delivered.

In 1889, A. V. Wright applied to the Commissioner to purchase the south three-quarters of the same section. His application was accepted, and upon his complying with the law, in 1906 a patent was issued him. The patent, while describing the land in accordance with Wright’s application and award, embraced within its field notes 98.97 acres of the land described in Conn’s timber award and deed.

The controversy here concerns this 98.97 acres, the plaintiffs in error claiming under the patent to Wright.

Under the Act of 1901, the award of the timber to Conn in 1904 entitled him to become the purchaser of the land embraced in the award within five years thereafter, if the timber was not sooner removed, on condition of actual settlement. In 1907, the requirement as to actual settlement under the purchase of such lands by those who had previously been awarded the timber rights therein, was abrogated by the Legislature. In 1908, as the purchaser of the timber and while it was still uncut, Conn duly made application to purchase the quarter section described in his timber award and deed.The Commissioner thereupon awarded him the land without the condition of . actual settlement.

The plaintiffs in error admit that had Conn, by due award, become the purchaser of the quarter section, on condition of actual settlement, as was his right under the Act of 1901, his title to the 98.97 acres in controversy — a part of the quarter section— would be superior. But they say that with the patent, embracing the land, issued to Wright, under whom they claim, in 1906, when the law required actual settlement in the sale of land purchased in virtue of a previous timber award, Conn could not defeat the right conferred by the patent by a purchase of the land thereafter without complying with that requirement; and, since he did not comply with it, their title under the patent should prevail.

If the patent had conferred any right, the question thus presented might have a different phase. But it in fact conferred no intervening right, and for that reason those holding under it are in no position to complain of a failure by Conn to comply with the Act of 1901 even if it were true that that act and not the Act of 1907 governed his purchase of the land. The award of the timber in 1904 invested Conn with the right to purchase the land. This necessarily withdrew the land from the market for sale to others during the period that this right existed. Any attempt by the Commissioner to sell it to others while the right was in force was without lawful authority. Wing v. Dunn, 60 Tex. Civ. App. 16, 127 S. W. 1101. At the time, therefore, that the patent was issued to Wright, in 1906, the land was not subject to sale eixcept to Conn or his assigns. If it could not be lawfully patented to Wright because of the want of any authority for the Commissioner’s act, the patent could not be made the basis of any claim of right. In fact, the inclusion of the land within the description of the patent was clearly erroneous. Wright made no application to purchase any part of the quarter section, and no part of it was awarded to him. The case was correctly determined by the Court of Civil Appeals. We agree with the recommendation of the Commission of Appeals that the judgment of the' Court of Civil Appeals should be affirmed, and it is so ordered. 
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