
    SCHAUER v. SCHAUER.
    (No. 3303.)
    (Supreme Court of Texas.
    Feb. 25, 1920.)
    1. Public lands <&wkey; 178(2) — Collusive purchase OF PUBLIC SCHOOL LANDS PROM OCCUPANT NOT AUTHORIZED BT STATUTE.
    Where defendant acted in collusion with another to búy public school lands for such other from the occupant, the attempted transfer by the occupant to defendant was not authorized by Rev. St. 1911, art. 5436, but was plainly forbidden, and defendant acquired no title to the lands; the only right acquired under a transfer authorized by the statute being that of substitution, expressly denied to defendant.
    2. Public lands <s&wkey;173(21) — Forfeiture op SCHOOL LAND BY PURCHASER’S ABANDONMENT.
    A purchaser of public school lands having secured them on condition of settlement, and having failed to comply with the law’s requirement as to residence through abandonment of the land himself without leaving thereon a qualified substitute, it became the duty of the commissioner of the general land office to forfeit the purchase under Rev. St. 1911, art. 5425.
    3. Public lands &wkey;>173(21) — Limitation PROVISION NOT AFFECTING ASSERTION OF RIGHT TO SCHOOL LAND BY SECOND PURCHASER.
    Rev. St. 1911, arts. 5458, 5459, limiting to one year the time within which purchasers of public free school lands may sue therefor, have no effect on the assertion of title to such land made by plaintiff, to whom it was validly awarded after lawful forfeiture of the previous purchase of defendant’s predecessor.
    Error to Court of Civil Appeals, Eighth Supreme Judicial District.
    Suit by Charles Schauer against Otto Schauer. From judgment for defendant, plaintiff appealed to the Court of Civil Appeals, which affirmed (202 S. W. 1010), and plaintiff brings error.
    Judgments of the district court and-of the Court of Civil Appeals reversed, and judgment ordered for plaintiff.
    See, also, 185 S. W. 653.
    Cornell & Wardlaw, of Sonora, and Blanks, Collins & Jackson, of San Angelo, for plaintiff in error.
    Ed J. Hamner, of Sweetwater, for defendant in error.
   GREENWOOD, J.

Plaintiff in error, Charles Schauer, instituted this suit in the district court of Crockett county against defendant in error, Otto Schauer, to recover 2,560 acres of public school lands in Crockett county.

The facts show without substantial conflict that the commissioner of the general land office awarded these school lands to Clarence Rotsman on April 19, 1901, who resided upon one of the tracts as his homestead until May 5, 1902, when- he and his wife, by recorded deed, conveyed the lands to defendant in error, Otto Schauer, and thereafter the lands were abandoned by Rotsman. Defendant in error, Otto Schauer, and his wife settled on the lands as their home as soon as Otto Schauer received his deed thereto, .and they have since continuously resided thereon. Interest payments on Eotsman’s purchase were regularly made up to and including 1909. Further payments on Rotman’s purchase have been refused by the state. Defendant in error, Otto Schauer, admitted. that before and at the time he took the conveyance from Rotsman he had contracted to sell the lands to Charles Schauer, Sr., in consideration of the payment of $35 per month for the period of his occupancy of the land, and also all expenses for the trials of a pending case against Otto Schauer, and also the loan of two-thirds the purchase price of 1,500 head of sheep, which contract was originally verbal, but later Otto Schauer signed in addition a bond for title to the lands, wherein it was recited that Otto Schauer was to receive $400 from Charles Schauer, Sr., at the time the lands were to be deeded to Charles Schauer, Sr., that being an amount held back or reserved, or to be held back or reserved, out of the promised $35 per month. ■ Otto Schauer further testified that be could not truthfully have made • an affidavit that he was not buying the land for any other person, and that after three years’ possession had been held he did not make proof of his occupancy, being advised by his attorney not to make such proof, and that Charles Schauer, Sr., stated that he had Rotsman on the lands, but trouble had arisen between them, and he was afraid Rotsman would sell, and therefore wanted him (Otto Schauer) to take possession. Otto Schauer was not substituted for Rotsman as purchaser of the lands, and no award was made to Otto Schauer. On January 28, 1910, the commissioner of the general land office indorsed in red ink on the face of each of Rotsman’s obligations the words: “Land forfeited for collusion and for failure to occupy. J. T. Robison, Com. Dibrell, 1 — 28—1910”—and each account of Rotsman in the state treasurer’s office was on the same day marked forfeited, and the commissioner of the general land office on January 28, 1910, wrote a letter to the clerk of the county court of Crockett county advising him that the sales to Rotsman had been canceled, and directing that the appropriate entries showing such cancellation be made on his records. On February 15, 1910, the commissioner of the general land office awarded the lands to plaintiff in error, Charles S¡chauer, on proper application, and lie has complied with all the law’s requirements relative to settlement, occupancy, and proof, and on March 7, 1913, he received from the commissioner a certificate of occupancy of the lands, which was on March 19, 1913, recorded in Crockett county, and all payments due hy Charles Schauer on his purchase have been made.

The trial court rendered judgment that plaintiff in error, Charles Schauer, take nothing by his suit, and the Court of Civil Appeals affirmed the judgment, upon the ground that Charles Schauer’s cause of action was barred by the act of 1905 (General Laws 29th Leg. p. 35), now articles 5458 and 5459 of the Revised Statutes of 1911. 202 S. W. 1010.

In our opinion, the commissioner of the general land office was clearly authorized to forfeit the Clarence Rotsman contract of purchase on his abandonment of the land, and to thereafter award same to plaintiff in error, Charles Schauer; and the act of 1905 interposed no bar to the maintenance of this suit by Charles Schauer.

Otto Schauer acted in collusion with Charles Schauer, Sr., for the purpose of buying the 2,560 acres of land for Charles Schauer, Sr., who was therefore interested in the purchase. Under these circumstances, the attempted transfer by Clarence Rotsman to Otto Schauer was not authorized by section 10, Act April 4, 1895, p. 63, now article 5436 of the Revised Statutes of 1911. It was, on the contrary, plainly forbidden. Therefore Otto Schauer acquired no right to the lands. The only right acquired under a transfer which is authorized by the statute, now article 5436, is that of substitution. Otto Schauer being expressly denied the right of substitution, it necessarily results that the attempted transfer to Otto Schauer in no wise absolved Clarence Rotsman from his obligation. Clarence Rotsman having purchased the lands on condition of settlement and having failed to comply with the law’s requirement as to residence, through abandonment of the land himself, without' leaving thereon a qualified substitute, it became the duty of the commissioner of the general land office to forfeit Rotsman’s purchase under section 6e, Acts 1907, p. 490, now article 5425, R. S. 1911.

In the case of Hardman v. Crawford, 95 Tex. 193, 66 S. W. 206, the land had been awarded in 1896 to Gober, who abandoned the land before the expiration of three years, when he attempted to transfer it to Hard-man, who continued to use it for agricultural and grazing purposes, but did not settle upon it for a home. Gober’s purchase was forfeited for his abandonment of the land, and it was thereafter, in 1899, awarded to Crawford, who recovered a judgment against Hardman for the land, which was affirmed by the Court of Civil Appeals and the Supreme Court. The opinion of Judge Brown closes the discussion of. the question of the land commissioner’s right to forfeit Gober’s purchase with the conclusion:

“The purchase by Hardman from Gober without actual settlement and compliance with the law gave him no right whatever, and the abandonment of the land was good cause for forfeiture of the contract under which Gober held possession.” 95 Tex. 199, 66 S. W. 209.

Spence, Administrator, v. Mitchell, 96 Tex. 47, 70 S. W. 73, decides that one acquires nothing by virtue of a conveyance from an awardee of these school lands, unless the conveyance is authorized hy the statute.

No right having passed to Otto Schauer by reason of his disqualification to be substituted as a purchaser, the only subsisting claim to the lands under the state was in Clarence Rotsman, and that was rightly forfeited, as stated above, for Rotsman’s noncompliance with the condition of settlement on which he contracted to purchase.

The decision in Salgado v. Baldwin, 105 Tex. 508, 152 S. W. 165, is relied on by defendant in error as denying the power of the commissioner of the general land office to forfeit Rotsman’s purchase. As pointed out in that opinion, Baldwin, the second purchaser, “failed to show that Salgado [the first purchaser] did any one of the things by which he forfeited his right.” Here Charles Schauer, the second purchaser, did not fail to show that Rotsman, the first purchaser, did one of the things by which he forfeited his right; for Charles Schauer did show that Rotsman abandoned the land without complying with the law as to residence. Otto Schauer sought to avoid the consequences of Rotsman’s abandonment of the land by tacking his possession to that of Rotsman. To accomplish this, it was necessary to show a transfer from Rotsman to Otto Schauer, authorized by the statute. The evidence not only failed to establish, but conclusively negatived, such a transfer. Hence the facts were such as, by the express terms of the statute, made it the duty of the commissioner of the general land office to forfeit the Rots-man purchase.

■ Under its settled construction the act of 1905 (now articles 5458 and 5459 of the Revised Statutes of 1911) has no application to the suit by Charles Schauer ‘to recover these lands.

It seems to us that nothing could make plainer that the act of 1905 has no effect on the assertion of Charles Schauer’s right to this land, under the valid award .to him, after the lawful forfeiture of the previous purchase of Clarence Rotsman, than the following language of this court in Slaughter v. Terrell, 100 Tex. 604, 605, 102 S. W. 401:

“In order to ascertain what the Legislature intended by the enactment of this law, we must consider the evil that existed and determine what the remedy was to be. 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, tjiat 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 12 months of the- award of it or he will be barred. Clearly this applies only to cases where the state recognizes the validity of the purchase being attacked, and does not apply to a case like the present, where there has been a forfeiture of the former purchase by the land commissioner, and the land again put upon the market. There is no necessity for a suit by a purchaser of forfeited land; indeed, to so hold would be to say that the commissioner had the power to declare the forfeiture, although the award may have been made many years before that time, and the power to sell the land, but that the purchaser at the second sale could not get possession of the land because his suit could not be brought within a j;ear from the award to the first purchaser which had been forfeited. Such an absurd result is a sufficient answer to the contention for that construction.”

Moreover, the opinion in Nations v. Miller, 107 Tex. 619, 183 S. W. 153, reaffirms and demonstrates that the statute interposes no bar to the assertion of the rights of one having the status of a lawful purchaser of school land, so recognized by the state and entitled by law to be so recognized.

Having concluded that plaintiff in error, Charles Schauer, is entitled to recover of defendant in error, Otto Schauer, the lands sued for, the judgments of the district court and of the Court of Civil Appeals are reversed, and judgment is ordered entered in favor of plaintiff in error against defendant in error for said land and all costs. 
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