
    J. W. Brown v. J. J. Terrell, Commissioner.
    No. 1654.
    Decided January 30, 1907.
    School Land—Sale—Forfeiture.
    A sale of school land by the purchaser before his affidavit of settlement is actually on file with the Land Commissioner works a forfeiture of his purchase. Following Good v. Terrell, ante, p. 275. (P. 309.)
    . Original petition to the Supreme Court for mandamus against the Commissioner of the General Land Office.
    
      Rogan & Simmons, for relator.
    
      R. V. Davidson, Attorney-General, and Wm. E. Hawkins, Assistant, for respondent.
   GAINES, Chief Justice.

This is a petition for a writ of mandamus to compel the Commissioner of the General Land Office to reinstate" the purchase made by one J. W. Hardin of a section of school land, which had been cancelled and to substitute the relator, who had taken a conveyance from Hardin as a purchaser in his stead.

Hardin applied to purchase the land and it ivas awarded to him on the 4th day of August, 1906. On the 24th day of October, next thereafter he settled upon the section, and on the 26th day of the same month made his affidavit of the fact, and mailed it on the same addressed to the Commissioner of the General Land Office. On the next day after the mailing of the affidavit Hardin executed to the relator a deed purporting to convey the land to him. The affidavit should, in due course of mail, have reached the Land Office on the 27th of October, but was not in fact received and filed until Monday, October 29th. The relator caused his deed to be recorded in the office of the county clerk of the county in which the land is situated and then transmitted it to the Commissioner of the General Land Office. Whereupon the Commissioner cancelled the award and declared the land forfeited.

In the case of Good against Terrell (ante, page 275), we held that under the Act of 1905 a sale of school land before the affidavit of settlement was actually on file in the Land Office worked a forfeiture of the purchase.

We appreciate the extreme hardship of this case, but it is not in our province to grant any relief.

The mandamus is refused.  