
    HERNDON v. ROBISON, Com’r, et al.
    (No. 493-4061.)
    (Commission of Appeals of Texas, Section B.
    March 24, 1925.)
    1. Public lands @=173(22) — Purchaser of school lands may have forfeited claim reinstated.
    Purchaser of school lands, who has forfeited his claim on account of nonpayment of interest, may have claim reinstated, under Rev. St. art. 5423, provided no rights of third persons have intervened.
    2. Public lands @=173(22) — Forfeitee of school lands required to assert claim within year.
    Rev. St. arts. 5458, 5459, providing that, persons claiming right to purchase school lands, sold to another, must bring suit therefor within one year after date of sale, applies to purchaser of school lands whose claim was forfeited on account of nonpayment of interest, and who is seeking reinstatement under article 5423.
    3. Publia lands @=173(22) — Statute requiring claimants of school lands to bring suit within year vests conclusive right in defending purchaser after lapse of year.
    Rev. St. arts. 5458, 5459, providing that persons claiming school lands sold to another must bring suit therefor within one year after date of sale, furnishes not only a rule of limitation but a substantive rule of repose, which, after lapse of year, vests as against all claimants conclusive rights in defending purchaser.
    4. Public lands @=173(22) — Forfeitee of school lands seeking reinstatement and failing to attack sale to another within year barred.
    "Where forfeitee of school lands, seeking reinstatement of his claim under Rev. St. art. 5423, did not bring suit within one year after sale of forfeited lands to another, as required by articles 5458 and 5459, he cannot thereafter attack award of defending purchaser, nor can he be reinstated, since his opponent’s right has ripened.
    5. Public lands @=173(22) — Forfeitee of school lands failing to attack sale to another within year-held barred from attacking sale.
    Purchaser of school lands whose claim was forfeited by nonpayment of interest, and who did not seek reinstatement thereof under Rev. St. art. 5423, until more than one year after sale to another, held barred from attacking such subsequent sale of land, in view of Acts 1921, c. 57, § 1 (Vernon’s Ann. Oiv. St. Supp. 1922, art. 5435), providing that no sale made without condition of settlement shall be questioned after one year from its date, since such sale to another was made without condition of settlement within meaning of such statute.
    Mandamus on the relation of Gilbert Hern-don against J. T. Robison, Commissioner, and others.
    Denied.
    Capps, Cantey, Hanger & Short, of Fort Worth, for plaintiff.
    Wm. A. Gillenwater, of Clovis, N. M., and G. B. Smedley, of Wichita Falls, for defendants.
    Dan Moody, Atty. Gen., and Weaver Moore, Asst. Atty. Gen., for defendant Robi-son.
   STAYTON, J.

Gilbert Herndon sues for a writ of mandamus to cancel a sale of some school land and to compel the commissioner to reinstate him as purchaser. His claim, he admits, has been forfeited on account of nonpayment of interest. After the forfeiture and more than a year before the filing of his suit, the tract, having been again placed upon the market, was sold and awarded to respondent Wooten; but the proceedings precedent were illegal and the award was therefore invalid, as was pointed out in the similar case of Weaver v. Robison, 114 Tex. -, 268 S. W. 133. The sale had, however, up to the time, of this petition, been recognized by the commissioner as in force, and is still being defended by him.

The forfeitee relies upon the point of invalidity and upon the statute that gives a right of reinstatement in cases of forfeiture. ■The new purchaser and the commissioner depend upon the tardiness and the consequent futility of this suit in view of the provisions of two acts of the Legislature which will be explained presently.

Purchasers may have a forfeited claim of this kind 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”; and in that case the original obligations and penalties become as binding as before. R. S. art. 5423.

• This is the statute under which the forfei-tee claims, but he does not show that he has ever complied with it, nor that he is now able to do so. Decision of whether he thus fails to state a cause for mandamus is obviated, however, by the fact that the defense of his opponents, under the two acts already referred to, control the case and operate to deny him the relief that Re prays. ’

By one of these acts “all persons claiming the right to purchase or leasó” any school lands which have been sold or leased “to any other person under any provision of the law authorizing the sale or lease of any of said lands, shall bring * * * suit therefor within one year after the date of the award of such sale or lease, and not thereafter”; and if no suit is brought within that time, “it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease óf such lands have been complied with,” except as against the state. R. S. arts. 5458, 5459.

Soon after ,their enactment, these provisions were held to apply to mandamus suits, and not only to technical purchasers, but also to any one in the attitude of a purchaser, such as a person attacking the validity of the award of a home section which, though not sought to be acquired, was the basis of title to tracts that were the subject of litigation between him and a rival claimant, arid such as a person seeking reinstatement after forfeiture (as here) under the statute which has already been cited. Murphy v. Terrell, 100 Tex. 397, 100 S. W. 130; Wyerts v. Terrell, 100 Tex. 409, 100 S. W. 133. It has been said that all persons who are claiming school land under the state are within the contemplation of these articles. Erp v. Tillman, 103 Tex. 580, 131 S. W. 1057; Erp v. Robison, 106 Tex. 146, 155 S. W. 180, 157 S. W. 1160; Pruett v. Robison, 108 Tex. 283, 192 S. W. 537. And by the last three cases it has been settled that the act furnishes not only a rule of limitation, but, in the interest of the state and to the advantage of individuals, a substantive rule of repose, which, after the elapse of the year, vests, as against all such cláimants, a conclusive right in the defending purchaser.

This being the law, the forfeitee in the present case has no standing. ' He cannot attack the award of his opponent because he is barred by his delay and he cannot be reinstated, if for no other reason, because before he has taken any step in his own behalf his opponent’s right has come in and ripened; whereas, the statute that gives the privilege of reinstatement only does so, as previously noted, when “no rights of third persons may have intervened.”

The same result is reached by a second and cumulative law, which became effective prior to the forfeiture in this case and provides, among other things, that no sale “made without condition of settlement shall be questioned by the state nor any person after one year from the date of such sale,” except in * one instance. Chapter 57, § 1, Acts Reg. Sess. 1921 (Vernon’s Ann. Civ. St. Supp. 1922, art 5435). The exception is not shown to apply in this case, and it must accordingly be assumed that it does not do so. Houston Tap & B. R. Co. v. Randolph, 24 Tex. 329; Harvey v. Cummings, 68 Tex. 607, 5 S. W. 513; Ransome v. Bearden, 50 Tex. 119; Childress v. Grim, 57 Tex. 56.

This act broadens the policy of the other, enlarging by the words “questioned” and “state” the prohibited method and source of review. Some explanation of the reason of the development will most likely be found in the history of previous litigation where a claimant avoided the attack of another claimant only to succumb afterward to adverse ruling by the commissioner on behalf of the state and to consequent but indirect success by his opponent through the state.

The act clearly includes the present suit, which involves a sale made without condition of settlement, because, since no claimant nor the state may now question that sale, its standing is protected by a right that, inasmuch as it has intervened completely, is a bar to all the relief that is prayed. A sale that has become unquestionable is, to use other words, conclusive.

In consultation the point was raised as to whether the statutes that have been discussed apply to an award which was, as here, originally illegal for disobedience of statutory proceedings precedent; whether such an award can ever be the basis of a right. Associate Justice Williams for the Supreme Court anticipated and responded to this suggestion, with regard to the first act, in Wyerts v. Terrell, 100 Tex. 409, 100 S. W. 133. He held that since a rival claimant may succeed alone by proving that the sale which he attacks is void and thus eliminating it, the statute either applies to such a case or has no purpose or effect. And in King v. Robison, 103 Tex. 392, 128 S. W. 368, he added that the enactment was designed to meet objections of that nature which could have been, but were not, timely made. The court gave that effect to the statute in that case as it necessarily did, also, in Erp v. Tillman, 103 Tex. 580, 131 S. W. 1057, and Pruett v. Robison, 108 Tex. 283, 192 S. W. 537. What was thus decided applies with even greater force to the act of 1921 in a case such as the one at bar.

This case does not involve the right of a person not claiming under the state; nor that of one who claims by prior right under the state, but whose claim has been illegally forfeited ; and it does not involve a defense by one not recognized by the state as a claimant through the period for contest; nor in behalf of one presenting an excuse or exception, if any there may be, from the operation of the statutes by which it is ruled; and nothing is here expressed or intimated upon those or similar situations.

In the opinion of this court the petition for mandamus should be denied.

GREENWOOD and PIERSON, JJ.

Opinion of Commission of Appeals is adopted, and mandamus is denied.  