
    NATIONS et al. v. MILLER et ux.
    (No. 2440.)
    (Supreme Court of Texas.
    March 1, 1916.)
    1. Public Lands <⅞=⅞180 — Public Lands of State — Powers of Commissioner.
    The action of the Commissioner of the General Land Office in forfeiting a purchase of public lands is ex parte and dependent upon the actual existence of the facts constituting a lawful ground of forfeiture and authorizing him to declare it, since he is not invested with judicial powers.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. § 584; Dec. Dig. <g=»180J
    2. Public Lands ⅞=^173 — Lands of the State — Illegal Forfeiture — Statute.
    Under Rev. St. 1911, arts. 5458, 5459, providing that all persons claiming the right to purchase or lease any public free school lands, etc., which have been or may be sold or leased to any other person, shall bring suit within one year after the award of such sale or lease, and not thereafter, and that, if no suit has been instituted by any person claiming the right to purchase or lease within a year, it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease have been complied with, the defense of one to whom public free school land was sold in an action by purchasers after forfeiture declared against him that the forfeiture was illegal, leaving his right to the land unaffected, was not precluded because of his failure to bring suit for the land within a year from the date of the award after the forfeiture against him, and in trespass to fry title by the subsequent purchasers it was error to exclude evidence of the illegality of the forfeiture. ’
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. <®=ol73.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by F. P. Miller and wife against J. H. Nations and others. Judgment for plaintiffs was affirmed by the Court of Appeals (146 S. W. 261), and defendants bring error.
    Reversed and remanded.
    T. A. Falvey, Robt. L. Holliday, and Tur-ney & Burges, all of El Paso, for plaintiff in error. John L. Dyer and Peyton F. Edwards, both of El Paso, for defendant in error.
   PHILLIPS, C. J.

The action was one in trespass to try title brought by Miller and his wife to recover certain sections of land from W. P. Paschal and J. H. Nations, a lessee of Paschal, originally public free school land awarded, on June 26, 1906, by the Commissioner of the General Land Office to Paschal, and thereafter, on June 10, 1909, following a forfeiture by the Commissioner of Paschal’s purchase, awarded to Mrs. Miller. Paschal’s purchase of the land was in compliance with the law, and the required payments on his obligation were duly made up to the time of the Commissioner’s forfeiture of his purchase on May 24, 1909, and have since been duly tendered. He was in possession of the land at the time of the institution of the present suit. According to the entry made by the Commissioner at the time the forfeiture of Paschal’s purchase was “for failure to reside on the land as required by law.”

Upon the trial Paschal tendered witnesses to establish that he had continuously resided upon the land from the time of his purchase from the State, but was denied the right to make the proof. A verdict was instructed against him under the view entertained by the trial court that, in virtue of the Act of 1905 (chapter 29, page 35, Acts of 1905), present articles 5458 and 5459, Revised Statutes of 1911, he was concluded in the suit because of his failure to bring an action for the land within one year from the date of the award to Mrs. Miller; this being likewise the view of the Court of Civil Appeals as expressed in its affirmance of the judgment.

The Act of 1905 has been several times considered by this court, but we have not had occasion to determine any case where it was invoked under circumstances similar to those found here. Its provisions are doubtless familiar but we will quote it. It reads:

Art. 5458. “All persons claiming the right to purchase or lease any public free school lands, or any lands belonging to the state university, or either of the state asylums, which have been heretofore, or which may he hereafter, 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 his suit therefor within one year after the date of the award of such sale or lease, and not thereafter.”
Art. 5459. “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 foregoing article, it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease of such lands have been complied with: provided, that nothing in this and the preceding article 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.”

The purpose of the act is clearly stated in Slaughter v. Terrell, 100 Tex. 600, 102 S. W. 399, as follows:

“Under the law as it previously existed, purchasers of school lands were liable to have their titles attacked by third persons who desired to purchase the land, and such persons might call in question the qualification of the purchaser as well as the performance of conditions prescribed by law, for example, that when the purchase was made the purchaser did not actually reside upon the land, or that he did not intend to make it his home, and thus, although the State recognized his right, the purchaser was constantly exposed to such attacks. This rendered such titles uncertain and to remedy that evil the Legislature enacted the law now under consideration, which requires that any person who desires to purchase land theretofore purchased by another shall bring his suit to set aside the former purchase within twelve months of the award of it or he will be barred.”

Paschal’s position in the suit was that the Commissioner’s forfeiture of his purchase was wrongful, and his rights to the land, therefore, not affected by it. If it be true that he had not failed to reside upon the land as the law requires, the forfeiture was unauthorized. The Commissioner of the General Land Office, though an officer charged with high and responsible duties, is not invested with judicial powers; and his authority to forfeit a purchase of public lands is dependent upon the actual existence of the facts which constitute a lawful ground of forfeiture and authorize him to declare it. Smithers v. Lowrance, 100 Tex. 77, 93 N. W. 1064; Savings Bank. v. Dowlearn, 94 Tex. 383, 60 S. W. 754; Bumpass v. McLendon, 45 Tex. Civ. App. 519, 101 S. W. 491; Zettlemeyer v. Shuler, 52 Tex. Civ. App. 648, 115 S. W. 78. The action of the Commissioner in such eases is ex parte. The purchaser against whom the forfeiture is declared is entitled to a judicial hearing and determination of the question of whether there was any ground for the forfeiture; and of this, a common privilege inhering in every lawful adjudication of property rights, he cannot be deprived.

If there was, in fact, no warrant for the forfeiture of the .sale of the land to Paschal, and the forfeiture was therefore illegal, leaving, as a necessary result, his right to the land unaffected by it, was his defense to this action by the Millers concluded under the Act of 1905 because of a failure to himself bring a suit for the land within a year from the date of the subsequent award to Mrs. Miller? We do not think so. The act was intended to apply, and in terms clearly does apply, to persons “claiming the right to purchase or lease any public free school land,” etc. It does not purport to deal with one, much less bar his rights, who is not claiming any right to purchase as against an adverse claimant or award, but whose right to the land, if he has any claim to it, is unaffected by another award and is that of an established lawful purchaser, already invested with his interest in virtue of a prior valid sale, originally binding upon the State and still subsisting in full force under the law.

If Paschal’s contention in respect to his continuous residence upon the land be true, his rights at the time of the forfeiture of his purchase, the award to Mrs. Miller, and thereafter, as a purchaser under the State’s sale, were not less perfect than at their origin. They could not be destroyed by an illegal forfeiture and a subsequent illegal sale to anyone else. If he had complied with the law in respect to residence upon the land, as he proposed to establish by the testimony he tendered in the suit, he was the lawful purchaser of the land at the time of the award made to Mrs. Miller; and, in such event, that continued to be his status thereafter. • If such is not his status, it is plain that he has no right to the land; but if it is, it is equally plain that Mrs. Miller has no right to it.

He is asserting no other claim in the suit, and it appears has asserted none other to the land. If he is a lawful purchaser because once so recognized by the State and entitled under the law to be still so recognized, as he has the right to establish in Mrs. Miller’s suit, he cannot in our opinion be regarded as “a person claiming the right to purchase,” and the Act of 1905 is therefore without application.

No intimation contrary to this holding is to be found in the opinion delivered in Atchison v. Hanna, 107 Tex. ——174 S. W. 279, or in any other decision by this court touching the scope and effect of the Act of 1905. In Atchison v. Hanna, Hanna’s purchase was illegally forfeited. After such forfeiture the land was awarded to Armstrong who sold to Atchison. Within a year after the award to Armstrong Hanna filed in this court a motion for leave to file a petition for mandamus against the Commissioner of the General Land Office and Armstrong, seeking to have the Armstrong award canceled and himself recognized as a lawful purchaser of the land. On this motion the petition was permitted to be filed. It was afterwards dismissed for want of jurisdiction, caused by the interposition of Armstrong’s answer presenting a question of fact in relation to Hanna’s purchase from the State, which this court, under its jurisdiction, could not determine. It was not held that Hanna was under the necessity of bringing a suit for the land within a year from the date of the award to Armstrong in order to escape the operation of the Act of 1905. Upon this feature of the case it is in the opinion simply declared that inasmuch as the effect of Armstrong’s answer in the mandamus suit was to deprive this court of the authority to determine the issues, Armstrong and Atchison, his vendee, were in no position to say that Hanna had not brought a suit within the contemplation of the Act of 1905.

It is difficult to attribute to the Legislature a purpose to foreclose under the operation of this act the rights of one whom the State has once recognized to be a lawful purchaser of its public land, which, because of his compliance with the law, have never become legally subject to forfeiture but still subsist. The contemplation of such a result as the consequence of such a statute ought, we think, to be very clearly expressed before the statute is held to have such effect. No such intention is revealed in the terms of the Act of 1905, and we are therefore unwilling to give it such construction.

The judgments of the District Court and the honorable Court of Civil Appeals are reversed and the cause is remanded to the District Court. 
      <S=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     