
    DAVIS et al. v. YATES. 
    
    (Court of Civil Appeals of Texas.
    Nov. 16, 1910.
    Rehearing Denied Jan. 4, 1911.)
    1. Public Lands (§ 173) — School Lands— Rights of Purchasers — Statutes.
    Under Sayles" Ann. Civ. St. 1897, art. 4218f, authorizing the reinstatement of a claim of a purchaser of school land forfeited for nonpayment of interest if no rights of third persons have intervened, the right to reinstatement is absolute, and is not defeated by the act of the commissioner in erroneously awarding the land to a third person.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    2. Public Lands (§ 178) — School Lands— Rights of Purchasers.
    A purchaser of the rights of one to whom school land has been awarded occupies by substitution, on the commissioner accepting him, the position of an original purchaser, but he takes subject to any right to the land that intervened between the award and his purchase.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. § 178.]
    3. Public Lands (§ 173) — School Lands— Rights of Purchasers.
    The right of a purchaser of school lands forfeited for nonpayment of interest to reinstatement becomes fixed as of the date of his compliance with the statute authorizing reinstatement, and, where at that time, no third person had acquired any right, the fact that the commissioner erroneously decided that a third person had acquired rights did not affect the right to reinstatement, and the commissioner could subsequently reinstate him.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dee. Dig. § 173.]
    4. Public Lands (§ 173) — School Lands— Limitations — Statutes.
    Where a purchaser of school land was reinstated after a forfeiture of his right for nonpayment of interest before any third person acquired any rights, subsequent to the forfeiture and prior to the application for reinstatement, an action of trespass to try title brought against one claiming the land under an award to one not entitled to purchase within a year after the reinstatement was not barred by Laws 1005, c. 29, limiting actions by persons claiming the right to purchase school lands sold to others.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    5. Public Lands (§ 173) — School Lands— Actions — Limitations.
    Laws 1905, c. 29,* limiting actions by persons claiming the right to purchase school lands sold to others to one year after the date of sale, etc., applies only in cases 'in which persons claim the right to purchase land which has been sold to others, and it does not apply to an action by a purchaser of school land reinstated after a forfeiture brought against one claiming under an erroneous award subsequent to the forfeiture when such award was canceled.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544^551; Dec. Dig. § 173.]
    6. Public Lands (§ 178) — School Lands— Rights of Purchasers.
    Where one who purchased the rights of another to whom school land had been erroneously awarded had notice of the application of a third person for reinstatement as purchaser, the fact that the commissioner originally declined to reinstate the third person, and determined that the former was entitled to the land did not prevent the third person from relying on a subsequent decision of the commissioner reversing the original decision and reinstating him as purchaser.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. § 178.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by Willis Yates against W. H. Davis and another. From a Judgment for plaintiff, defendants appeal.
    Affirmed.
    Campbell & Wren, for appellants. Fisher, Sears & Campbell, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       Writ of error denied by Supreme Court.
    
    
      
      For otter eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Inflexes
    
   JAMES, C. J.

An action of trespass to try title brought by Yates against W. H. Davis and his wife, S. B. Davis, involving a tract of 160 acres, being the N. ½ of the N. ½ of school section 6, H. T. & B. R. R. Co. in Harris county; the original petition, filed June 6, 1908, alleging certain acts of trespass, respecting which an injunction was asked.

The answer filed August 18, 1908, was a general denial and not guilty, and set up that the tract was and is public school land, not patented, and if plaintiff had possession thereof when defendant entered upon it, such possession was procured by fraudulent and unlawful methods on the part of plaintiff; that under the law the land could only be awarded to one who made his residence upon it, and that plaintiff, when he filed this action, had not resided on the land, but had his residence on other land, that plaintiff is es-topped and cannot equitably contend that Julius Neyman (whose right in the land was purchased and is now owned by defendant S. B. Davis) failed to make and continre actual settlement on the land “for this: First. That the statute of limitations of one year as prescribed by the act of 1905 prohibits such attack in the courts. Second. That before defendant purchased from Neyman, her husband, W. H. Davis, as his agent, in good faith investigating the title, on or about March 18, 1908, told plaintiff that defendant S. B. Davis was negotiating for the purchase of said land from Neyman, and plaintiff then and there claimed said land and told W. H. Davis to see N. Schmitz of Houston who would tell him all about his title. That he (Davis) in good faith found Schmitz the next day, and told him of said negotiations with Neyman and of said claim of plaintiff, and of the latter’s referring to him for the particulars of his claim, and Schmitz then and there stated plaintiff’s rights in the land, but that he had lost them by his failure to make payments; that said Julius Neyman dare not live on the land, and that plaintiff would not let him do so, thus fully confirming the claim made by Neyman that plaintiff had lost all rights in the land, and that Neyman had secured the land from the state, but had to leave same from' fear of death or serious bodily harm at the hands of plaintiff, and defendants say that, induced by said statements, defendant S. B. Davis bought from Neyman, paid him value therefor, settled upon the land as her home, executed her obligation which has been accepted by the state for said land, and for about two months before the institution of this suit she was in quiet possession, and. during that time expended about $750 on improvements.

The answer also pleaded that for more than one year 'after the taking effect of the statute of 1905 and for more than one year after said land was awarded to Neyman, and his purchase thereof fully recognized by the state, and so appearing in the records, plaintiff cannot claim that defendants’ possession was obtained by force, threats, or fraud, for defendants entered thereon while same was open and not inclosed; that Neyman himself entered and gave defendants actual possession; was peaceably maintained for about two months before the institution of this suit; that plaintiff was present when such entry was made by Neyman, and walked off without saying anything, and for nearly two months plaintiff .almost daily saw defendants making the said improvements thereon and said nothing; that defendant S. B. Davis is a purchaser of the land from the state, and is so recognized as the lawful owner, with exclusive right of possession, and neither her rights nor those of her vendor Neyman in said land have ever been forfeited, but have all along been and are now in good standing upon the records of the Land Office. Plaintiff on May 17, 1909, filed an amended original petition, substantially similar to the ■original. Both parties filed voluminous amended pleadings, which would require too much space to set forth, and which, if it proves necessary, will be referred to in the consideration of the assignments of error. The judgment upon special findings of the jury was in favor of Yates for the tract of land, against appellants and a number of in-terveners. As the interveners have not appealed it is unnecessary to notice them or their pleadings. It appears that the questions here are questions of law, arising upon an agreed statement of facts.

Appellants’ brief sets forth the facts as ■succinctly as they may be, and appellee admits that they are correct as far as they go. We here give a copy of these facts:

“(1) On February 9, 1895, Yates purchased the school land in controversy from the state, being an actual settler, and has since resided •on the land.

“(2) August 1, 1903, Yates defaulted in the payment of interest then due.

“(3) July 1, 1904, Yates’ contract was canceled for such default.

“(4) July 2, 1904, said land was properly placed on the market for sale.

“(5) December 5, 1904, Neyman applied to purchase, as actual settler, filing his affidavit that he was at the time actually residing on the land as his home, which application was by the commissioner accepted, and the necessary money was paid to the treasurer and the land awarded to Neyman; and thereafter the annual payments were regularly made thereon and so appeared on Neyman’s account kept by the treasurer.

“(6) March 15, 1908, appellant entered into negotiations with Neyman to purchase his rights.

“(7) March 20, 1908, appellant referred the matter of title to the said land to her counsel.

“(8) March 24, 1908, Yates applied for reinstatement of his purchase, attacking Ney-man’s rights by affidavits filed with the commissioner, alleging nonsettlement and failure by Neyman to occupy the land.

“(9) April 2, 1908, appellant contracted to take the land from Neyman, to pay $2,500, therefor, but held up delivery of the consid; «ration pending the result of Yates’ contest.

“(10) April 15, 1908, appellant went on the land to reside as her home, placed thereon improvements worth more than $300 and has been there ever since.

“(11) April 23, 1908, Neyman filed with the commissioner affidavits controverting Yates’ attack on his title.

“(12) May 26, 1908, appellant filed with the commissioner deed from Neyman to her, also her regular affidavit, obligation, and application as purchaser.

“(13) May 26, 1908, the commissioner refused to cancel Neyman’s contract, refused to reinstate Yates’, and accepted appellant as purchaser of the land, and opened regular account with her.

“(14) May 28, 1908, counsel for appellant received official notice from the commissioner of this action.

“(15) May 30, 1908, appellant closed her deal for the land and paid the $2,500 consideration.

“(16) June 6, 1908, Yates filed this suit, alleging ownership of the land, possession for twenty years, erection of improvements, and asked for injunction restraining appellants from remaining on the land, building fences, etc. a

“(17) July 9, August 18, 1908, appellants answered, setting up their title under the foregoing facts, etc., pleading the statute of limitations of 1905, also estoppel against Yates and the state and commissioner.

“(18) September 19, 1908, the commissioner attempted to cancel the award to Neyman and the contract of appellant and to reinstate Yates.

“(19) May 17, 1909, Yates, by supplemental pleading, set up the September cancellation and reinstatement.”

Appellee particularly calls attention to the omission of one fact found by the jury, which was that Neyman at the time of his application for the land was not an actual settler upon the land in good faith, living upon the same with the purpose and intention of making it his home. One of the paragraphs of the agreed statement of facts is that the evidence supports the findings of the jury.

The first and second assignments of error are that the court erred in refusing to instruct the jury to return a verdict for the defendant upon the evidence.

In connection with the assignments, the following are undisputed facts: The original purchase by Yates was canceled for default in payments on July 1, 1904, and the land was placed on the market. Neyman, as an actual settler, purchased from the state on December 5, 1904, and kept up his payments, but was in fact not an actual settler. On March 24, 1908, Yates applied for reinstatement. On April 23, 1908, Neyman filed affidavits controverting Yates’ attack on his title, which attack was that Neyman had filed on his obligation as to settlement. On May 26, 1908, the commissioner refused to cancel Neyman’s contract, refused to reinstate Yates’, and accepted appellant (then a widow, Mrs. S. B. Simpson) as purchaser by virtue of a transfer from Neyman to her, and so notified appellant, who has done what was essential to keeping her purchase in good standing. On May 30, 1908, appellant Mrs. Davis (then Mrs. Simpson) paid Ney-man for his deed to her, having reserved same pending the outcome of Yates’ contest. At the time of Mrs. Davis’ purchase and acceptance she was residing upon the land as a home, and improved same and has since resided upon it. She married Davis June 4, 1908. On September 19, 1908, the commissioner, in view of Yates’ application as aforesaid, canceled the award to Neyman and his acceptance of appellant, and reinstated Yates, indorsing on both the obligation of Neyman and the obligation of Mrs. Simpson as his assignee: “Forfeited for failure of original purchaser to reside upon and improve the land as required by law, and for the reason that assignee Simpson was so cognizant of such facts at date of transfer to her” — and since said date he has refused to recognize Mrs. Simpson (now Davis) as the purchaser of the land. On June 6, 1908, Yates filed his original petition in this suit. On August 9th appellants filed their answer, setting up their title as it then stood, pleading the statute of limitations of 1905 and estoppel. On May 17, 1909, after the September, 1908, cancellation and reinstatement, Yates filed an amended petition; and by a supplemental petition of same date, in answer to defendant’s second amended original answer filed same day, Yates set up said September, 1908, cancellation and reinstatement.

It was an established fact that Neyman was not an actual settler on the land as required by law when he applied for and obtained his award. Also, that .when he negotiated to sell to Mrs. Davis (then Simpson), which was on April 2, 190S, Yates’ application for reinstatement, and his attack on Neyman’s purchase was before the commissioner, and .she had full notice of the same, and arranged with Neyman to withhold the purchase money to abide the result, and did so until the commissioner refused on May 26, 1908, to reinstate Yates or to cancel Neyman, of which she received notice, and a few days thereafter paid Neyman the consideration, which was $2,500, and received the deed, which had been left in escrow.

Under the third assignment appellant advances a number of propositions: First. Ney-man’s contract, while recognized by the state constituted rights of others intervening within the purview of Sayles’ Ann. Oiv. St. 1897, art. 4218f, which provides: “In any cases where lands have been forfeited to the state for the nonpayment 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.” Appellant has briefed, in this connection, the effect of the Act of March 16, 1905 (Laws 1905, p. 35), which provides as follows:

“Section 1. That hereafter all persons claiming the right to purchase or lease any public free school lands, which have been heretofore or which may be hereafter sold or leased to any other person under any provisions of the law authorizing the sale or lease of any of said lands, shall bring his suit therefor within one year after this act goes into effect, or after the date of the award of such sale or lease, if such award is made after the taking effect of this, act and not thereafter.

“Sec. 2. If no suit has been instituted by any person claiming the right to purchase or lease any of said land within the period of time limited in the first section of this act it shall be conclusive evidence that all the requirements of the law in reference to the sale or lease of such lands have been complied with; provided that nothing in this act shall be construed to affect the state of Texas in any action or proceeding that may be brought by it in respect to any of said lands.”

Under the first statute above quoted, Yates, whose right was forfeited because of the failure to keep up interest payments, it being otherwise regular, had the absolute right at any time thereafter to .be reinstated on written request, provided no right of Neyman had in the meantime intervened. When Yates filed his written request and complied, as he did, with the payment of the interest due, his right to reinstatement was perfect as to Neyman, because at that time the latter had no right, notwithstanding his award, for the reason that he had in fact never settled on the land, and the act of the commissioner in awarding him the land was contrary to law, outside of his authority, and conferred no right. Briggs v. Key, 30 Tex. Civ. App. 566, 71 S. W. 43, in which case the Supreme Court refused a writ of eri;or. See, also, Williams v. Barnes, 111 S. W. 434; Jones v. Wright, 92 S. W. 1011; Tillman v. Erp, 121 S. W. 549. No intervening right existed in Mrs. Simpson (Davis) at the time of Yates’ request for reinstatement, for the reason that whatever claim she obtained was acquired subsequently, with notice.

This brings us to consider the effect of the commissioner’s action in canceling Neyman’s purchase and Mrs. Davis’ acceptance by him after having, upon the contest, once decided to recognize same and to reject Yates’ request for reinstatement; and the further question of the effect of the above statute of limitations, on the assertion by Yates of his right.

It is settled that Mrs. Davis, by her substitution, occupied the position of an original purchaser. Reininger v. Pannell, 46 Tex. Civ. App. 137, 101 S. W. 816; Johnson v. Bibb, 32 Tex. Civ. App. 471, 75 S. W. 71; Burnett v. Wommock, 85 S. W. 1199; Martin v. Marr, 26 Tex. Civ. App. 55, 62 S. W. 932. But as stated in the first of these cases such purchaser took subject to any right to the land that had intervened. When no intervening right exists the purchase is in all things treated as an original one. The purchase by Mrs. Davis was after Yates had filed his request for reinstatement, and even her negotiations for the transfer were subsequent thereto. At the time of his application he had only Neyman to deal with. If Yates was, by his application, and the fact that Neyman was not a settler, legally entitled to reinstatement, he was so entitled when he complied with the statute for that purpose (Anderson v. Neighbors, 94 Tex. 241, 59 S. W. 543), and the process by which the commissioner finally arrived at or postponed the recognition of his right is immaterial. His action in first denying his right did not conclude him from afterwards on reconsideration «recognizing it (Johnson v. Bibb, 32 Tex. Civ. App. 471, 75 S. W. 72). Even his continued refusal would not have concluded Yates’ right of reinstatement. Lee v. Green, 24 Tex.. Civ. App. 109, 58 S. W. 196, 847. We hold in this connection that such right of Yates became fixed as of the date of his compliance with the terms of the statute, and at that time appellant Davis had acquired no right.

In reference to limitations, the facts are that Yates filed his original petition on June 6,1908, more than four years after the award to Neyman, and within a short time after the transaction between Neyman and Mrs. Davis, but after Yates had filed his application for reinstatement which occurred on March 24, 1908. Said original petition alleged that Yates was the owner and entitled to the possession of the land with improvements thereon; that defendants were trespassers upon the same, committing acts of trespass and waste, etc., and excluding plaintiff therefrom, and injuring the freehold, and prayed for an injunction to restrain them from further trespassing upon the land or interfering with plaintiff’s possession, use, enjoyment, etc., and. general relief. Plaintiff on May 17, 1909, filed an amended original petition alleging in substance the same. Upon the coming in of defendants’ second amended answer on same day setting up their claim, as they had already done in their original answer filed August 18, 1908, plaintiff filed a supplemental petition setting up the circumstances of his right to the land under the reinstatement.

It should be observed that after Yates had allowed his original purchase to become and remain forfeited, he had no right of action to assert against Neyman, as matters thus stood. Yates, however, continued to possess a certain right under existing statutes, which was to apply for his reinstatement, which, if he properly performed, would create in him a right to the land which he could assert in the courts. There was no delay of a year after this right to litigate accrued to him. Besides, after the reinstatement and the cancellation, defendants had no recognized right to be protected by the said limitation statute. In Murphy v. Terrell, 100 Tex. 399, 100 S. W. 131, the court says: “It will be noted that the express terms of the act apply only in cases in which persons claim the right to purchase or lease land which has already been sold or leased to others. See, also, Campbell v. Enochs, 107 S. W. 878.” The statute might have applied to defendants had they seen fit to bring suit against Yates and had delayed more than a year. And it might have applied in favor of defendants had Yates not been reinstated and had delayed more than a year in filing his action. Under the circumstances of this case we conclude that the statute was not applicable.

'Appellants’ third proposition is that Ney-man’s failure to occupy the land, either at the time, or after purchase, did not ipso fac-to create a forfeiture. This need not be disputed nor considered.

The fourth proposition is: “Whatever default, after purchase, has been made by the purchaser of school lands, his contract is valid against all other purchasers, either by reinstatement or otherwise, until the commissioner has actually indorsed a cancellation on his obligation, in terms of the law.” This proposition is made in connection with the fact that the indorsement was not made until September 19, 1908, which was after Mrs. Davis had completed her purchase. From what has been said Yates’ statutory right to reinstatement accrued when he made his request and complied with the statute, and the postponement of the official indorsement did not postpone his right.

The fifth proposition is: “When the commissioner accepted appellant’s proper affidavit, obligation, etc., as substitute purchaser, she obtained a valid contract, not subject to cancellation for any previous default of Ney-man with reference to settlement.” While this is true, it is not by any means true that she thereby obtained precedence over the right of Yates, to be reinstated in his original purchase of the same land, the latter having at the time she purchased, complied with the statutory requirements perfecting that right.

The sixth proposition is that Mrs. Davis stood as an original purchaser, which proposition this opinion fully admits.

The remainder of appellants’ propositions deal with the question of estoppel. Appel-' lant contends that the refusal of the commissioner to cancel Neyman’s contract and reinstate Yates and officially notified Mrs. Davis that he had done so, whereupon she completed her purchase from Neyman, being then upon the land and complying with Sayles’ Ann. Giv. St. 1897, art. 4218k, and was accepted by the state as purchaser in lieu of 'Neyman, both the commissioner and the state were estopped from thereafter canceling appellants’ contract for any default of Neyman as to settlement; and that when the state enters into contract with a citizen the same rules of law apply to it as, under like conditions, govern the contract of an individual ; that it was not shown that appellant, nor any one acting for her, did any act, or made any representation, or participated in or connived at any act, declaration, or representation by others, whereby the commissioner was deceived, if he was deceived, as to the true facts with reference to Ney-man’s settlement and occupancy, that there being no allegation of fraud or misrepresentation on her part in procuring her contract with the state, .and it being admitted that, since the award to her, she has made no default in her payments or her settlement, no grounds for forfeiture of her contract existed, and the commissioner had no authority to enter the same, and his attempt to- do so in September, 1908, was void and affected no rights, and the attempted reinstatement of Yates vested no right in him; and, finally, it is contended that Yates acquired no right by his application for reinstatement at the time he filed it, and can claim only under the attempted reinstatement of September, 1908, in print, with the state, which had parted with its title by estoppel and by deed. Yates therefore acquired no right as against appellant by reason of such attempted reinstatement. The state was no party to this proceeding, and appellee is not charged with any conduct amounting to estoppel. Appellants’ point is that the state was estopped by the action of the commissioner recognizing appellant and refusing to reinstate Yates, thereby leading appellant to consummate her purchase, and Yates is equally estopped, he claiming under the state.

It must be borne in mind that not only was Yates’ request for reinstatement filed, but appellant had full notice of it, and of all the circumstances attending it, before she attempted to purchase. She withheld consummation of her purchase on account of these facts, and unfortunately treated the first decision of the commissioner as conclusive when it was not final, but subject to reconsideration and reversal (Moore v. Rogan, 96 Tex. 375, 73 S. W. 1; Johnson v. Bibb, supra) for mistake or inadvertence.

Had there been no reconsideration by the commissioner, and his first action had stood, Yates, upon the facts we have before us, could have, in due time, brought an action to substantiate his right to the land, notwithstanding. Slaughter v. Terrell, 100 Tex. 600, 102 S. W. 399. The right of appellant would have been subordinate to the result of such suit. She had full notice of his claim, and had bought subject to whatever right Yates could establish in such an action against Yates or her, and we fail to see that Yates was put to any disadvantage, or she placed in any better position, by the first or the final conclusion of the commissioner. It would be in the power of the Legislature to provide for protecting persons who act upon an erroneous decision of the commissioner in such instances; or it might make the decision of the commissioner once declared a finality. But it has not done so, so far as we are informed.

We conclude there was no estoppel.

The judgment is affirmed.  