
    FITZHUGH v. JOHNSON.
    (Supreme Court of Texas.
    June 19, 1912.)
    Public Lands (§ 173)— School Lands— Sales — Competitive Biddins — Deposit— Requirements.
    Under Act April 15, 1905 (Laws 1905, c. 103), providing for the sale of public school land by competitive bidding, for the filing of an application and obligation with the commissioner of the general land office, and for the deposit of the first payment, such deposit is a condition precedent to the purchase of the land. It is improperly awarded to one who, though the highest bidder, has not made his deposit, as against a lower bidder who has made his deposit.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544r-551; Dec. Dig. § 173.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by Mrs. M. T. Johnson against D. K. Fitzhugh. Judgment for plaintiff was affirmed by the Court of Civil Appeals (133 S. W. 913), and defendant brings error.
    Reversed and rendered.
    Charles Rogan, of Austin, A. S. Hawkins, of Midland, and E. C. Canon, of Pecos, for plaintiff in error. Frank A. Judkins, of Odessa, and Ed H. Yeiser, of Austin, for defendant in error.
    
      
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   BROWN, C. J.

The land in suit is situated in Crane county, and on the 3d day of April, 1907, was upon the market as free school land under the act of April 15, 1905, for sale by competitive bidding.. See chapter 103, Laws 1905, p. 159. No question is raised as to the regularity of the proceedings prior to the sale. The tract contains 640 acres, and A. L. Fisher bid $3.05 per acre, and the land was awarded to him on the day of the sale April 3, 1907, but he did not deposit the first payment in the treasury until the next day after the award was made. Mrs. M. T. Johnson claims under an award by th.e commissioner which would give title if Fitzhugh’s title is not superior. On the 3d day of April, 1907, D. K. Fitzhugh, in compliance. with law, filed his bid to buy the same land, bidding $3 per acre, and on that day deposited with the treasurer the one-fortieth of the purchase price and claimed to be the purchaser; but the Commissioner of the General Land Office awarded the land to Fisher.

As we view the case, it depends upon the validity of the purchase claimed by Fitz-hugh. If he got the title, then the judgments of the trial court and of the Court of Civil Appeals (133 S. W. 913) must be reversed, and judgment must be rendered for the plaintiff in error, unless he abandoned his claim. This land was sold under chapter 103, Laws 1905, p. 161, the fourth section of which reads: “When the applications and obligations aforesaid have been filed in the General Land Office, and upon inspection they are found correct and the land is found to be classified and valued and on the market for sale the day the application was filed, or on any prior date and still unsold, and the first payment is in the state treasury, it shall be the duty of the Commissioner to award the land to the one offering the highest price therefor.” Fitz-hugh persistently claimed the purchase at the time, and left his deposit with the Treasurer until it was urged upon him to receive it, and he did so under protest, and continued at all times in possession of the land after it was awarded to him, making frequent claim for it to the Commissioner while excluded from possession. There is no evidence in the record to sustain the finding that Fitzhugh abandoned his claim.

Two cases are rarely found to be so similar as this and Rawls v. Terrell, 101 Tex. 157, 105 S. W. 488. The case cited arose under the same law as this, and in that two men had filed bids for the same section. One bidder made deposit according to law, the other did not. The Commissioner of the General Land Office awarded the land to the man who had no deposit with the Treasurer when the award was made, and upon an application for mandamus this court ordered that officer to award the land to the man who had made his deposit according to law on the day the land was sought to be purchased. This court stated the legal rights of the contestants thus: “We conclude that, since the co-respondent did not have his first payment in the treasury at the time the bids were opened, he was not in the eye of the law a bidder, and the Commissioner was without power to award him. the land.” That decision determines this ease. Fitzhugh acquired a right by his bid and deposit and was entitled to the land, and is now entitled to judgment against Mrs. Johnson. It is therefore ordered that the judgments of the district court and of the Court of Civil Appeals be reversed, and that judgment be rendered that plaintiff below take nothing, and pay all costs.  