
    JONES v. ROBISON, Com’r, et al.
    (Supreme Court of Texas.
    Feb. 1, 1911.)
    1. Public Hands (§ 173) — Eokoteiture—Re-instatement — -Resale.
    Under Sayles’ Ann. Civ. St. 1897, art. 4218f, providing that, where school lands have been forfeited for nonpayment of interest, the purchasers may be reinstated on paying the full amount of interest due, if no rights of third parties have intervened, an application for a reinstatement made after a subsequent purchaser had completed his purchase came too late.
    [Ed. Note. — For other cases, see Public Hands, Cent. Dig. § 549; Dec. Dig. § 173.]
    
      2. Public Lands (§ 173) — Forfeiture of Purchase — Reinstatement—Gk otjnd s .
    A misrepresentation of facts by the treasurer of the . land office as to condition of accounts in his office does not entitle one to reinstatement of claims that had been forfeited after the rights of legal purchasers have intervened.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 549; Dec. Dig. § 173.]
    3. Courts (1 207) — Supreme Coukt — Jurisdiction-Question of Fact.
    The jurisdiction of the Supreme Court in mandamus is not taken away by the suggestion that defendant was liable to plaintiff for damages - for misrepresentations, and hence a question of fact was presented where the issue of such liability was not, and could not have been, raised or litigated in the action.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 756; Dec. Dig. § 207.]
    Mandamus by the People, on the relation of D. F. Jones, against J. T. Robison, Commissioner, and others to reinstate purchase of school land and cancel patent.
    Peremptory writ issued against respondent.
    N. A. Rector, for relator. Jewel P. Light-foot, Atty. Gen., L. A. Dale, and Sam D. Snodgrass, Asst. Atty. Gen., for respondents.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BROWN, C. J.

D. F. Jones, relator, complains of J. T. Robison and T. A. Coleman, alleging, in substance, that on June 17, 1909, section 1228, certificate 216, C. C. S. D. & R. G. N. G. R. R. Co., situated in Webb county, Tex., was public free school land, and subject to sale under the law controlling such sales. It is alleged that on April 5, 1901, the said land had been sold to some person who is not named in the petition, but subsequently disclosed to have been Jasper Wooldridge. Wooldridge had transferred it to some other person, who had failed to pay the installment of interest due on said land on November 1, 1907, and the land was subject to forfeiture for nonpayment of the interest. At some date after January 30, 1908, which is not given, the treasurer certified to the commissioner of the land office the fact that the interest upon the said purchase had not been paid, and thereupon the commissioner, on August 29, 1908, declared the said land to be forfeited, making proper indorsement upon the application and all entries required by law, and giving notice to the treasurer in accordance with the statute. The treasurer made a proper indorsement upon his books ■showing the forfeiture of the claim. Thereafter, on June 17, 1909, the commissioner appraised the land at $2 per acre, placing it on the market for sale to actual settlers. On June 19, 1909, relator was qualified to purchase the said land under the law then in force, and made application to the commissioner of the land office to purchase the same at the appraised price of $2 per acre. The land was awarded to him by the commissioner, and he made the payment required by law of 1/40 of the purchase price and executed his obligation in conformity to the statute and settled upon the land, making and returning to the land office within due time his affidavit of settlement.

On the 27th day of August, 1909, the commissioner canceled the sale made to relator, and reinstated the sale made to Wooldridge, which was then claimed by T. A. Coleman. The commissioner of the land office answered by general demurrer only. Coleman answered, setting up the following facts, which are not denied by the relator: C. C. Clamp, an attorney who resides in San Antonio, represented T. A. Coleman, in his land matters, and had charge of this particular claim. Clamp wrote to Sam Sparks, the treasurer, on January 29, 1908, requesting the treasurer to let him know if any interest was then due and unpaid on the purchase money of the land in controversy, and the treasurer informed him that all of the interest to November 1, 1907, had been paid, when, in fact, it had not been paid to that date, and was not paid until after the commissioner canceled the purchase of Jones and reinstated the former sale. Clamp usually kept large sums of money in the hands of the treasurer, with instruction to apply it to interest on purchases for which he, Clamp, was attorney ; but no direction was given to appiy the money to the payment of the interest of this land upopt the claim of Coleman, nor does it appear that the treasurer knew that Clamp represented Coleman, nor, indeed, that he knew that Coleman claimed the land until after the forfeiture had been declared. It does not appear that Clamp had any money in the treasury at the time the forfeiture was declared. After the petition for mandamus in this case had been deposited in this court and the motion for leave to file the application had been filed in the court, the commissioner issued a patent for the land to Coleman, and the conveyances of Wooldridge down to Coleman were filed in the General • Land Office.

By the forfeiture of the Wooldridge purchase, which was duly entered according to the provisions of the statute, that right was terminated and the land was open to purchase by another. If, however, before Jones acquired his right by purchase and settlement, Coleman had made application for reinstatement of his purchase, he would have come within the terms of Mound Oil Company v. Terrell, 99 Tex. 625, 92 S. W. 451. In that case there was a forfeiture of the purchase under' which the Mound Oil Company claimed an application had been made by another party to purchase the land, but that application had not been completed, so that the applicant was entitled as a matter of law to have the land reinstated, as.no intervening right had vested. The Mound Oil Company, before the perfection of the intervening right, made payment of the interest and all dues upon the purchase under which it claimed, and this court held that under those circumstances the company was entitled to a reinstatement of its purchase under this provision of article 4218f, Sayles’ Ann. Civ. St. 1897, which we copy: “In any cases where lands have been forfeited to the state for the nonpayment of interest, the purchasers or their vendees may have their claims reinstated on their written request, by paying into the treasury the full amount of interest due on such claim up to the date of reinstatement; provided, that no rights of third persons may have intervened.” There is no intimation in that opinion that the state could be estopped by the action of the State Treasurer in giving false statement of the condition of the account which that office was required to keep with each purchaser of the land.. When Coleman made application to reinstate the sale made to Wooldridge, Jones had completed his purchase, and had a legal right to the land in controversy, which could not he taken from him by the action of the commissioner of the land office. The land was lawfully on the market when Jones made his application to buy it. He made his payment according to the requirements of the statute and settled upon the land, filing his affidavit of settlement within the prescribed time, all of which was completed before Coleman took any steps to reinstate the purchase under which he claims. There can be no case found in our court and none has been cited that would sustain or Justify the action of the land commissioner in this case in striking down the legal right of the man who had complied with the law in order to reinstate the claim which had been forfeited by a failure to comply with its requirements, however much he was misled by the treasurer.

It is suggested by the learned counsel for respondent Coleman that Sparks, the treasurer, would be liable to Coleman for damages on account of the misrepresentation of facts as to the condition of the account in his office, and that this raises a question of fact which takes the case out of the jurisdiction of this court. If Coleman should seek to hold Sparks responsible in damages for the misstatement of the account in his office, it would make a question of fact between them, but that question could not be litigated in this case, and would be wholly irrelevant to any issue before this court.

The land commissioner had no authority to cancel the sale made to Jones. Therefore it is ordered that the writ of mandamus issue commanding the Commissioner of the General Land Office to reinstate the purchase of Jones upon the books of his office, and that he cancel the patent issued by him to Coleman.  