
    HOEFER v. ROBISON, Land Com’r, et al.
    (Supreme Court of Texas.
    March 15, 1911.)
    Public Bands (§ 172) — Foefeited Sales.
    Rev. St. 1895, art. 42181, provides that if, upon the 1st day of November of any year, the interest due on any obligation remains unpaid, the land commissioner shall indorse on such obligation “Band Forfeited,” and shall cause an entry to be made on the account kept with the purchaser, and thereupon said land shall thereby be forfeited to the state, without the necessity of re-entry or judicial ascertainment. A land commissioner indorsed upon the contract with the original purchaser, and also upon the file wrapper which contained all the papers, and upon the account kept in the land office, the words “Band Forfeited.” Held, such indorsement was sufficient, without placing it upon the obligation of the second substitute purchaser.
    [Ed. Note. — For other cases, see Public Bands, Cent. Dig. §§ 523-543; Dec. Dig. § 172.]
    Mandamus by Henry I-Ioefer to compel J. T. Robison, Commissioner of the Band Office, and others, to cancel a forfeiture. Writ refused.
    Chas. Rogan, for relator. Jewel P. Bight-foot, Atty. Gen., and B. A. Dale and Jno. B. Terrell, Asst. Attys. Gen., for respondents.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BROWN, C. J.

On the 22d day of March, 1902, W. F. lams filed his application in the General Band Office to purchase section 36, block 1, T. T. & R. R. Co., as a home, and to purchase section 18, block 7, T. T. & N. O. Co., as additional land, both sections situated in Dallam county. The Commissioner of the General Band Office awarded both sections to lams, who executed his obligation, made payments, and did all the things necessary to be done to complete his purchase. Having resided upon the land as required by law for three years, and having paid all interest and made all other payments that the law required, lams made proof according to law that he had occupied the land for three years continuously, and otherwise complied with the statute, and on March 28, 1905, the Commissioner issued to lams the certificate of occupancy as prescribed by the statute. On March 28, 1905, lams sold, and by deed duly executed conveyed, section 18 to J. K. Hearste, who caused his deed to be recorded in that county, after which he filed it in the Band Office, executing his own obligation for the balance of the purchase money due upon the land, thereby being substituted and accepted by the Commissioner as a substitute purchaser from the state for said section 18. On November 1, 1905, Hearste, joined by his wife, by deed duly executed, conveyed the said section 18 to W. F. Bangley, and on March 22, 1906, Bangley caused his deed to be recorded in the said county as required by law, and deposited it in the Band Office with his own obligation for the balance of the purchase money, thereby becoming substitute purchaser of the land. Up to this time the law had been complied with by each of the preceding purchasers, and Bangley was recognized by the Commissioner of the General Band Office as substitute purchaser.

On April 18, 1906, Bangley, by deed duly executed, conveyed the land to relator, but the deed was not filed in the Band Office, and no steps were taken by relator to substitute himself as purchaser from the state. The interest upon the purchase price of the land was all paid up to November 1, 1908, but the interest due on that date was not paid. On September 2, 1909, the Commissioner declared the land forfeited, making indorsement upon the contract of Hearste, also upon the file wrapper which contained all the papers connected with that transaction, and upon the account kept in that office with the purchase. The land was duly placed upon the market for sale, to occur October 4, 1909, and on October 5th, at 10 o’clock a. m. the land was awarded to corespondent Townsend in accordance with the provisions of the statute governing such sales, and on the same day at 10:40 o’clock a. m., just 40 minutes after the award had been made to Townsend, relator offered to pay the interest which had become due, making tender of the money to the Commissioner; but the Commissioner refused to accept it, because the land had already been awarded to Townsend. Relator filed this application for a mandamus to require the Commissioner to cancel the award made to Townsend, and accept payment of the interest from him, and reinstate the purchase of the land as made by the persons hereinbefore named.

Article 4218J of tlie Revised. Statutes of 1895 contains tills provision: “If upon tlie first day of November of any year tlie interest due on any obligation remains unpaid, tlie Commissioner of tlie General Land Office shall indorse on such obligation ‘Land Forfeited,’ and shall cause an entry to that effect to be made on the account kept with the purchaser, and thereupon said land shall thereby be forfeited to the state without the necessity of re-entry or judieiál ascertainment.” The only proposition presented in this application, upon which the mandamus, is sought, is that the declaration of forfeiture made is void, because the indorsement, “Land Forfeited,” was not placed upon the obligation of W. F. Langley, the second substitute purchaser; that being the one then in force.

It is insisted that a strict compliance with the law is required to sustain a forfeiture, and as to the facts which transpired and upon which a forfeiture is declared the contention is correct. But it has been held by this court that a substantial compliance with the requirements of the statute in making the indorsement specified is sufficient. Brightman v. Comanche County, 94 Tex. 599, 63 S. W. 857. In the case cited the obligation was in the office of the Treasurer of the state, having been deposited there under a previous law, which required that it should be so done. When the forfeiture occurred in that case, the Commissioner, not having the custody of the obligation, made the in-dorsement upon the file wrapper, which contained the papers concerning that particular tract of land, and upon the account kept in the Land Office with that land sale. This court held that such indorsement was a substantial compliance with the law, saying: “The file wrapper itself was a paper which the law required him to keep (Revised Statutes, art. 404G), and it inclosed all the papers in his office evidencing the contract; and the account, also required to be kept, showed the standing of the purchaser. The indorsement upon these were such compliance with the law as he could make, and we think, as they furnished evidence of his action which met the purpose of the law, they were sufficient. Whether or not the in-dorsement on the account alone would be sufficient, where the obligation is not in the office, we need -not determine.”

' Although, in this instance, the obligation was in fact in the office, it was inclosed in the file wrapper with all papers connected ■with that tract of land, and the indorsement, “Land Forfeited,” being placed upon the file wrapper and upon the account, meets all tlie requirements of the statute in a substantial way, notwithstanding the indorsement was improperly made upon an obligation not .then in force. The indorsement upon that obligation could not in any way assist in sustaining the forfeiture; but, discarding it, as if no indorsement upon any obligation had been made, the facts still are sufficient to show a substantial compliance with the requirements of the law, and sufficient to support the forfeiture as it was declared.

The application for the writ of mandamus is refused.  