
    SCHAUER v. SCHAUER.
    (No. 5177.)
    (Court of Civil Appeals of Texas. Austin.
    March 8, 1916.
    Rehearing Denied April 19, 1916.)
    1. Public Lands <&wkey;173(21) — Lands of State — Forfeiture—Conflicting Claims— Evidence — Statute.
    In trespass to try title by a party to whom the Commissioner of the General Land Office sold the land in suit after declaring forfeiture against the original buyer, the suit being against the purchaser from1 the original buyer, defendant had the right to prove facts showing that the alleged forfeiture of the original buyer’s title was illegal and void, since if the purchase was not subject to forfeiture the second buyer from the land commissioner acquired no rights, while if the forfeiture was legal, Rev. St. 1911, arts. 545S, 5459, limiting the time within which persons claiming the right to purchase free school lands may sue therefor to one year, cut off defendant’s right to attack plaintiff’s purchase.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. § 549; Dec. Dig. &wkey;173(21).]
    2. Public Lands <&wkey;173(21) .— Lands of State — Substitution of Buyer — Forfeiture.
    The failure of a substitute purchaser of public free school lands to deposit with the proper officer his obligation to pay the purchase money in lieu of the obligation of his vendor, as re-quired by statute, does not operate ipso facto as a forfeiture of the title.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. § 549; Dee. Dig. &wkey;^ 173(21).]
    Appeal from District Court, Crockett County; J. W. Timmins, Judge.
    Suit by Charles Schauer against Otto Schauer. Erom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Ed. J. Hanmer, of Sweetwater, for appellant. Cornell & Wardlow, of Sonora, for ap-pellee.
   HEX, C. J.

Charles Schauer brought this suit in form of trespass to try title against Otto Schauer, the land involved being several sections of state school land. The proof shows prima facie that on April 19, 1901, the lands in question were awarded and sold to Clarence Rotsman by the Commissioner of the General Land Office, and that Rotsman complied with the provisions of the statute regulating the sale of such lands until May 5, 1902, when he and his wife conveyed all of the land to Otto Schauer. The plaintiff introduced testimony showing that on the 28th day of January, 1910, the Commissioner of the General Land Office indorsed in red ink, upon the face of the account between the state and Rotsman, these words, “Forfeited. 1 — 28—10”; and also indorsed in red ink across the face of each of the obligations held by the state against Clarence Rotsman for the purchase of the lands, these words: “Land forfeited for collusion and failure to occupy. J. T. Robinson, Com’r. 1/28/1910. Dibrell.” The plaintiff further showed that thereafter the Commissioner of the Land Office took the necessary steps to reclassify the lands, and on February 15, 1910, awarded and sold-them to the plaintiff, Charles Schauer, who has complied with all the provisions of the statute regulating the sale of such lands, unless it be that he was not an actual settler, as required by law. It was shown that thereafter, and on March 24, 1905, Otto Schauer made application in proper form, and in all respects in compliance with the statute regulating the sale of such lands, to purchase the lands in question, which application was rejected by the Commissioner of the General Land Office April 3, 1905. It was shown that all of the first payments required by law on all of the applications introduced in evidence were made by the respective parties at the time and in compliance with the law, and that all interest payments required by law were made by the respective parties at the time and in compliance with law, and that all additional lands are within the five-mile radius of the respective home section's. Upon an instructed verdict, the court below rendered judgment for the plaintiff for the lands in question, and the defendant has appealed. Appellant has brought no suit to recover the land from ap-pellee, and this suit was brought more than one year after appellee’s purchase.

Only three assignments of error are presented in appellant’s brief, and these complain of rulings of the trial court: (1) In not permitting appellant to introduce testimony tending to show that at the time he purchased the land Clarence Rotsman was an actual bona fide settler on the one designated as his home section, that he had not acted in collusion with any one else, and that the reason assigned by the Commissioner of the Land Office for attempting to cancel his purchase did not in fact exist; (2) that at the time appellee attempted to purchase the land he was not an actual, bona fide settler upon the same, and did not become such within the time prescribed by law, nor had he continued to reside upon, occupy, and improve the same; and (3) that on May 5, 1902, when appellant purchased the land from Rotsman, the former became an actual, bona fide settler upon his home section, and had continued to reside upon, occupy, and improve the same as a home. The action of the trial court in excluding the testimony referred to seems to be sustained by the decision of the Court of Civil Appeals of the Fourth District, in Nations v. Miller, 146 S. W. 261, in which it was held, upon a similar state of facts, that a prior purchaser from the state, who had not brought suit within twelve months after the date of the subsequent purchase, could not assail the validity of the latter purchase by showing that the facts did not authorize the Commissioner of the Land Office to cancel the former purchase. That ruling involved a construction of articles 5458 and 5459 of tlie Revised Statutes of 1911, which articles read as follows:

“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 be 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.”

That case was carried to the Supreme Court, and was decided by that court only a few days ago (183 S. W. 153). That court overruled the decision of the Court of Civil Appeals, and we quote as follows from the opinion of that court:

“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.”

'Hence we conclude that the trial court committed error in holding that appellant had no right to prove facts which would show that the alleged forfeiture of the Rotsman title was illegal and void. If the facts were as appellant offered to show, then the Rots-man purchase was not subject to forfeiture by the Commissioner of the Land Office, and appellee acquired no right when he attempted to purchase the land, and when the Commissioner of the Land Office attempted to award it to him. If the Rotsman purchase was legally canceled, then the statute construed in Nations v. Miller, supra, will apply, and cut off appellant’s right to assail appellee’s purchase.

Counsel for appellee present the contention that, regardless of the construction that may be placed upon articles 5458 and 5459, the judgment in this case should be affirmed (1) because it was not shown that appellee had become a substitute purchaser of the land by depositing with the proper officer his obligation to pay the purchase money in lieu of the obligation of his vendor Rotsman, as required by statute; and (2) because it affirmatively appears that in purchasing the land from Rotsman appellant acted in collusion with Chas. Schauer, Sr. As to the first point referred to, we hold that the failure to file substitute obligations, as required by the statute, does not operate, ipso facto, as a forfeiture of the title. As to the second point, the statement of facts does not show by uncontroverted testimony that appellant was acting in collision with any one in purchasing the land from Rotsman. The bill of exception referred to by counsel for appellee states, in one or two paragraphs, that, if the court had permitted appellant to do so, he would have proved that he was not acting in collusion; but it also contains the statement that, if such proof had been admitted, the ap-pellee would have shown that, in a former trial of another suit, appellant testified that he was acting in conclusion with Charles Schauer, Sr., in the purchase of the land. It has been held by the Supreme Court that it is not permissible on appeal for an appellate court to dispose of a case upon the assumption that, if testimony wrongfully excluded had been admitted, the party appealing would have been entitled to' recover, and therefore the appellate court should render such judgment. Besides, it does not affirmatively appear from the record that, if the court had. admitted the testimony which was excluded, the undisputed proof would have shown that appellant was acting in collusion when he-bought the land, because the bill of exception states that the excluded testilnony would have shown that he was not so acting.

On account of the error of the trial court as pointed out above, the judgment is reversed, and the cause remanded.

Reversed and remanded. 
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