
    ERP et al. v. ROBISON, Land Office Com’r.
    (Supreme Court of Texas.
    April 2, 1913.)
    1. Mandamus (§ 10) — grounds—Clear Legal Right.
    Mandamus must be founded upon a clear legal right in relator.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 37; Dec. Dig. § 10.]
    
      2. Public Lands (§ 173) — School. Lands— Subsequent Sale — Cancellation of Pri- or Sale — Necessity.
    Public school lands were not subject to purchase where a prior sale thereof had not been officially canceled when the application to purchase was filed, so that the subsequent- sale was unauthorized and conveyed no right.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    3. Public Lands (§ 173) — Resale—Nonoc-cupancy — Effect.
    Under Acts 27th Leg. e. 125, § 3 (Rev. Civ. St. 1911, art 5424), providing that all forfeitures for nonoccupancy of public lands sold shall have the effect of placing the land upon the market without any action of the Commissioner of the General Land Office, nonoccupan-cy does not ipso facto constitute such a forfeiture as will place the land upon the market, subject to resale, without cancellation of the prior sale.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    4. Public Lands (§ 173) — Public School Lands — Invalid Sale — Enforcement Against State.
    Under Acts 29th Leg. c. 29 (Rev. Civ. St. 1911, art. 5459), providing if no suit is instituted by one claiming the right to purchase public school land within the year limited for the bringing of such suit by article 5458, it shall be conclusive evidence that all legal requirements as to the sale have been complied with, provided that the articles shall not be construed to affect the state in any action brought by it with respect to such land, the Commissioner of the General Land Office could not be required to recognize an invalid sale, though the state did not repudiate it.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    5. Public Lands (§ 173) — Public School Lands — Purchase.
    Where, by reason of the lapse of a year from the award of public school lands to plaintiff, the sale became valid as between him and a third person, though invalid as against the state, because a prior sale had not been canceled, no one could acquire a valid title by purchase from the state, in the absence of action by the state to forfeit plaintiff’s purchase.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    Petition for mandamus by Sadie F. Erp and others against J. T.. Robison, Commissioner of the General Land Office.
    Writ refused.
    N. A. Rector, of Austin, for petitioner. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., opposed.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
    
      
      For otner cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PHILLIPS, J.

This is an action to r'e-quire the respondent to vacate his cancellation of an award and sale of a tract of public school land heretofore made by the Commissioner of the General Land Office to Wm. F. Erp, thereafter conveyed to Sadie F. Erp, his wife, and reinstate such sale upon the records of his office.

It appears from the recitals of the petition substantially as follows: The tract of land was originally appraised at $3 per acre, and awarded and sold to W. E. Chambers, for whom one Schmitz was subsequently substituted on his purchase of it from Chambers, in which, transaction he delivered to the latter his vendor’s lien notes therefor in the principal sum of $2,000. On February 8, 1905, prior to any cancellation by the Commissioner of the Chambers-SShmitz sale, Wm. F. Erp, upon the assumption, as it may be presumed, that such sale had been or would be canceled- for abandonment, duly made application to purchase the tract at its then appraised value, $3 per acre. On or about March 15, 1905, the land was reappraised by the Commissioner at $5 per acre, of which fact Erp was not apprised until after the award and sale of the land to him. Both Chambers and Schmitz failed to occupy the land as required by law, and on March 25, 1905, the Chambers-Schmitz sale was canceled by the Commissioner for nonoccupancy, and the land placed upon the market for sale. It was awarded and sold by the Commissioner to Erp on April 5, 1905, upon his application of February 8, 1905. Thereafter, in the district court of Liberty county, one Ager, as the holder of the vendor’s lien notes given by Schmitz to Chambers for the land, obtained a foreclosure of such lien, under which Y. E. Tillman purchased it. On June 1, 1906, Erp and wife, these relators, instituted in that court a suit against Tillman for the land in trespass to try title, to which Tillman filed an answer consisting of a general denial and plea of not guilty. On February 5, 1907, prior to the trial of this case, Tillman duly made application to purchase the land at its then, appraised value of $5 per acre, which was rejected by the Commissioner because, according to his indorsement, of its having been sold to Erp. Thereupon Tillman amended his pleading in the suit, adding a plea of reconvention against the Erps for recovery of the land, in trespass to try title, to which they pleaded not guilty. The result of this suit was a judgment in favor of the Erps on their original action, and also on Tillman’s cross-action, which was reversed and the cause, rendered in Tillman’s favor by the Court of Civil Appeals (121 S. W. 547). On writ of error to this court the judgment of the trial court was affirmed. 103 Tex. 574, 131 S. W. 1057. Thereafter the Commissioner, on the advice of the Attorney General, canceled the sale to Erp upon the ground that it was illegally made; and it appears from the petition that the land had been again placed upon the market for sale.

The purpose of this proceeding is to compel the recognition of the original sale by the state of this tract of land to Wm. F. Erp, and a consequent right in the relators to complete the purchase and obtain the title.

In order to grant such relief, the court must be warranted in holding..that, in virtue of the sale, the relators have acquired such legal rights as entitle them to enforce it, as a mandamus must be founded upon a clear legal right and otherwise does not lie. Railway Co. v. Jarvis, 80 Tex. 458, 15 S. W. 1089; Teat v. McGaughey, 85 Tex. 478, 22 S. W. 302.

It is evident from the petition that there had been no official cancellation of the previous Chambers-Schmitz sale of this land when Erp filed his application to purchase on February 8, 1905. It was not officially canceled until March 25, 1905. The land was therefore not subject to purchase when Erp’s application was filed, and the sale made upon the premature application was unauthorized and conferred no right. Adams v. Terrell, 101 Tex. 331, 107 S. W. 537; Boswell v. Terrell, 97 Tex. 259, 78 S. W. 4; Willoughby v. Townsend, 93 Tex. 80, 53 S. W. 581; Ford v. Brown, 96 Tex. 537, 74 S. W. 535.

We have considered the argument advanced by counsel for the relators in support of the proposition that under the Act of April 19, 1901 (article 5424, R. S. 1911), abandonment, ipso facto, works a forfeiture of the sale, and against the decision rendered by Chief Justice Gaines in Adams v. Terrell, supra, upon that question; but we are convinced of the soundness of that decision, arid have no disposition to overturn it. While the language of the act is that “all forfeitures for nonoccupancy shall have the effect of placing the land upon the market without any action whatever on the part of the Commissioner of the General Land Office,” under the act the land is clearly not upon the market until the forfeiture accrues. There, is distinctly no provision, however, tbat nonoccupancy shall, ipso facto, constitute the forfeiture; and it is necessary to read such a provision into the act in order to give it the construction for which relators contend. It furthermore appears from the petition that, when the land was awarded to Erp at the price of $3 per acre, it stood appraised at $5 per acre, whereby a sale was effected for less than the appraised value of the land, contrary to law. Both of these features of this sale were discussed by the Court of Civil Appeals and this court in their respective opinions, supra, rendered on the appeal of the case of Erp v. Tillman, involving this land, tried in the district court of Liberty county, resulting in the holding by both courts that the sale to Erp was invalid upon either ground. As the sale was not in compliance with the law, the relators have acquired no rights thereunder, and are therefore not in position to invoke a mandamus to compel its recognition and reinstatement by respondent.

The holding of this court in Erp v. Tillman that in that controversy the Erps were entitled to prevail and to a judgment in their favor for this land gives no additional force to the position of relators in this proceeding. That decision was not effectual to impart to this sale a validity as against the state that it did not originally possess.

In holding that the sale was not in compliance with law, the court there substantially decided that it was invalid as against the state, but that under the operation of the act of March 16, 1905 (articles 5458, 5459, R, S. 1911), because no suit had been brought for the land within one year from the date of its award, it was a sale valid against all other adverse claimants. The sale to Erp, in our opinion, undoubtedly has under this 'act the status of entire validity as to all such claimants, but not as against the state. The statute was intended as one of repose and to conclude all such adverse claims after the lapse of a year from the date of the award, giving to a purchaser protection and security from attack by all claimants other than the state after his award has stood unassailed for such period of time and placing it beyond the power of any one but the state to thereafter interfere. But the proviso of the act relieves the state from the option it possesses as to all other persons, for it clearly reserves to the state the right of election to either abide by or repudiate any sale not had in compliance with the law. It thus clearly appears that the act has no vitalizing power as against the state, and cannot be availed of to require the Commissioner of the General Land Office, an executive officer in charge of such department, to recognize and fulfill for the state a sale, which under the law was invalid in its inception. The failure of the state to repudiate such a sale would not make it valid or entitle the claimant to enforce such rights in respect thereto as inhere only under a lawful purchase.

The further proposition is advanced that, if the sale to Erp was invalid, Tillman acquired title to the land in virtue of his application filed February 5, 1907, his cash payment of one-fortieth of the purchase price, and the execution of his obligation for the balance, which passed to the relator Sadie F. Erp under the judgment rendered in the suit of Erp v. Tillman, whereby it is contended that the relators, having offered to carry out such alleged purchase by Tillman, are entitled to be recognized as substitute purchasers of the land under such title. The basis of the proposition is that under his application of February 5, 1907, Tillman acquired a title superior to that of relators, of which they may now make use. A sufficient answer to this is that Tillman acquired no title under such application, as was necessarily held by the court in Erp v. Tillman in its determination that, under these identical facts, the Erps were entitled to recover the land from Tillman.

As was there plainly decided, and as we have here already affirmed, after the lapse of a year from the award to Erp the sale to him became valid against every one but the state, necessarily vesting in Erp, as between all other persons and himself, the superior right and title to the land. Such was its status when Tillman filed his application; and, so long as it continued, Tillman nor any one else could acquire a valid title.

Mandamus refused.  