
    STATE et al. v. DAYTON LUMBER CO. et al.
    (Supreme Court of Texas.
    April 16, 1913.)
    1. Trespass to Try Title (§§ 12, 32) — Action — Essentials.
    For a plaintiff to prevail in trespass to try title, he must establish his right to possession, and the petition must state also that he was in possession when the right of action accrued, or that when ousted he was entitled to possession.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 17, 39-41; Dec. Dig. §§ 12, 32.]
    2. Vendor and Purchases (§ 296) — Right to Possession.
    A vendor of land, whose vendee has not made default in payment of installments, cannot maintain trespass to try title against one claiming adversely against the vendee, though as between himself and the vendee he holds the superior title under a reservation of a vendor’s lien.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 832; Dec. Dig. § 296.]
    3. Public Lands (§ 173) — Texas School Lands — Sale.
    A purchaser of school lands from the state, whose purchase is in good standing, is entitled to possession as an ordinary vendee, and the state cannot, in the absence of special authority, maintain trespass to try title, even though another makes claim adversely to the title of the vendee.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 514-551; Dec. Dig. § 173.]
    4. Public Lands <§ 173) — State Lands— Right of Action — Statute.
    Under Acts 26th Leg. (1st Called Sess.) c. 11, § 8 (Rev. Civ. St. 1911, art. 5468), providing that when any of the lands described, or any of the other public lands of the state held or owned by any fund, or any lands in which this state, or any such funds, have an interest, are claimed by any person adversely to the state, the Attorney General must institute suit therefor, the venue thereof to be. fixed in Travis county, the state is not authorized to maintain trespass to try title to school land which has been sold to a vendee who has not made default in his contract and is in good standing, even though other persons make adverse claims against the land, for lands validly sold become segregated from the mass of lands held in the several funds and cannot be said to thereafter belong to such funds.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    5. Public Lands (§ 173) — State Lands— Actions — Intervention.
    • Acts 29th Leg. c. 103, § 8, providing that when any land lying between older surveys is held by the Commissioner of -the General Land Office to be unsurveyed, vacant land appropriated to the school fund, and is sold as such, and thereafter any suit arises between the owners of the older survey and the purchaser, any final judgment shall be conclusive as to the existence of such vacancy, but, if the judgment be obtained through collusion against the state, it may be vacated at any time within five years thereafter, does not authorize the state to intervene in such an action.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ -544-551; Dec. Dig. s 173.]
    Certified Questions from Court of Civil Appeals, Third Supreme Judicial District.
    Action by the state of Texas and others, against the Dayton Lumber Company and others. A judgment for defendants was reversed'by the Court of Civil Appeals, which certified questions to the Supreme Court.
    Questions answered.
    Jewel P. Lightfoot, Atty. Gen., Jno. L. Terrell, Asst. Atty. Gen., L. B. Moody and L. R. Bryan, both of Houston, N. A. Rector, of Austin, B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for appellants. Gregory, Batts & Brooks, of Austin, and Stevens & Stevens and A. D. Stone, all of Liberty, for appellees.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PHILLIPS, J.

In certifying to us the questions that hereafter appear, the honorable Court of Civil Appeals has made the following statement:

“This case is now pending in this court on motion for rehearing, and the questions here-inbelow certified, among others, have arisen for our decision. The state of Texas et al. were plaintiffs, and the Dayton Lumber Company et al. were defendants. The trial court rendered judgment for the latter. That judgment we have reversed, but we have sustained a cross-assignment and hold that venue was improperly laid in Travis county.
“The facts, in so far as they are pertinent to said questions, are as follows: In 1904 the Commissioner of the General Land Office held that the land in controversy was vacant, unappropriated land, belonging to the public school fund, lying between the western boundaries of the Martinez surveys and the eastern boundaries of the International & Great Northern Railway Company surveys, which surveys had been made long prior to that date, and sold said land in accordance with law. The timber growing on said land was sold separately for the sum of $3,557.40 The purchaser paid one-fortieth of the purchase money and executed his obligations for the remainder. , Said sales are in good standing in the Land Office; and the plaintiffs, Maddox et al., .are the owners of whatever title, if any,, was conveyed by the state in said sales. The defendants contend that no vacancy ever existed between said Martinez and said International & Great Northern Railway Company surveys.
“The state joined the other plaintiffs in bringing this suit, alleging that it had an interest in the subject-matter in controversy in that, if it be held that no vacancy exists between said surveys, it will be compelled to repay the purchase money received for said land and cancel said obligations, and that thereby the state and the public school fund will suffer loss in the sum of $6,466.80.
“Plaintiffs allege that the claim of defendants that no vacancies exist between the boundaries of said surveys casts a cloud upon the title conveyed by the state to said land, and pray that the boundaries of said Martinez surveys and said International & Great Northern Railway Company purveys be established, and that said cloud be removed. The land in controversy is situated in Liberty county, Tex., in which county the defendants reside. The suit was brought in the district court of Travis county.
“The defendants in proper time and form pleaded their privilege to be sued in Liberty county, which plea was by the trial court overruled. The action of the trial court in overruling said plea of privilege was duly excepted to by defendants and presented to this court by a proper bill of exception.
“It is the contention of the state that the act of February 23, 1900, p. 29 (R. S. 1911, art. 5468), gives the district court of Travis county jurisdiction to try this case. We held, as appears from a copy of our opinion hereto attached, and made a part of this certificate, that jurisdiction of this ease was improperly laid in Travis county, and the effect of which holding is that the state of Texas is not a proper party to this suit.
“With the foregoing statement and explanation, the Court of Civil Appeals for t£e Third District propounds to the Supreme Court the following questions:
“(1) Under the facts above set out, is the state of Texas a proper party to this suit?
“(2) If so, was the venue properly laid in Travis county?”

The statement presents a case where both the state and its vendee of a tract of school land, whose purchase is in good standing, are seeking in the same suit to maintain an action for the land in trespass to try title against adverse claimants. The right of the state to make itself a party plaintiff and to therefore lay the venue of the suit in Travis county is claimed in virtue of section 8 of the act of February 23, 1900 (General Laws of 1900, p. 29 [R. S. 1911, art. 5468]), which is as follows: “When any of the lands described in this title, or any of the other public lands of the state held or owned by any fund, or any lands in which this state, or any such funds, have an interest, are held, occupied or claimed by any person or association or corporation adversely to the state, or to such fund, it shall be the duty of the Attorney General to institute suit therefor, together for rent thereon, for any damages thereto; and for the purpose of any such suits for such lands, or affecting the title thereto, or right growing out of the same, the venue thereof is fixed in Travis county, Texas, concurrently with the county of defendant’s residence, and the county where the land is situated; and the courts of said county shall have the same jurisdiction over the defendant and the subject matter of the same as if such defendant resided, and such property was situated, in said county.”

In order for the plaintiff to prevail in the action of trespass to try title, he must establish the right of possession to the land. The petition must state either that he was in possession when the right of action accrued or that when justed he was entitled to such possession.

It is settled law in this state that a vendor of land, whose vendee has not made default, cannot maintain a suit for it against one claiming adversely to the vendee, because of his not being entitled to possession, though as between himself and the vendee he holds the superior title under a reservation in the deed of the vendor’s lien. Stephens v. Motl, 82 Tex. 81, 18 S. W. 99; Carey v. Starr, 93 Tex. 508, 56 S. W. 324.

The relation of the state to school land sold to a purchaser in c.ompliance with the law, whose purchase is in good standing, is not essentially different from that of a vendor in ordinary sales of land where the vén-dee has not made default; and, unless exempt from its operation because of "some statutory enactment, no sound reason can be given why the rule that in such a case denies to the ordinary, vendor the right to maintain the action of trespass to try title against one claiming adversely to his vendee should not be held equally applicable- to the state where it seeks to maintain the same character of action against one claiming adversely to its vendee. In valid sales of school land, the purchaser is entitled to the exclusive possession so long as his purchase is in good standing, both as against the state and all others; and under such conditions the state can acquire no such right of possession as is necessary to support the action of trespass to try title. Until the purchase is completed, the state holds the superior title, but the law plainly is that the purchaser acquires such ah equitable title as will support the action. Hazelwood v. Rogan, 95 Tex. 295, 67 S. W. 80. As such right inures to him by its acquisition from the- state through his purchase, it cannot remain with the state at the same time.

A study of the act of 1900' convinces' us that it was not designed to enlarge the rights of the state in this particular. By reference to that part of its title in relation to suits by the state thereunder authorized, it will be noted that its language is, “And providing for suits in Travis county against any person claiming any of the land belonging to the school fund or any other funds.” Bands that are validly sold become segregated from the mass of lands held in the several funds, and cannot be said to thereafter “belong” to such funds. Upon the sale,, the obligation of the purchaser belongs to the proper fund, taking the place'of the land as an asset of the fund, but such is not the. status of the land. It is evident, therefore, that the purpose of the act in relation to suits, as reflected in the title, was not to provide for suit by the state in" respect to lands formerly belonging to the several funds but of which the state had made sales, valid in their inception and remaining in good standing, but was to authorize such action by the state only in respect to lands whose status was such as to constitute them still the property of such funds.

The phrase in section 8 of the act, “or any lands in which this state, or any such funds, have an interest,” clearly refers to an interest in such lands for which the state is entitled to sue. It does not mean an interest of the’ character that it is claimed the state has in this land, one which is limited as a result of its sale and cannot be asserted in derogation of any right acquired by its vendee thereunder, whose main essentials are inconsistent with any right of possession, and for which, accordingly, in this kind of action, no judgment in, its favor could be rendered. This is made plain by the further provision in the section relating to such “interest” which declares it to be the duty of the Attorney General “to institute suit therefor.”

Reference is made by counsel for the state to a section of the act of 1905 (Acts 29th Leg. e. 103, § 8) reading as follows: “When any land, lying between older surveys, is held by the Commissioner of the General Land Office to be unsurveyéd or vacant land appropriated to the public school fund by the act of February 23, 1900, and is -sold as such under the provisions of this act, and thereafter any suit arises between the owner or owners of such older surveys, and the purchaser from the state or ’ his vendees, any final judgment rendered in such suit shall be deemed and held conclusive as to the existence or nonexistence of such vacancy: Provided, if in, any suit judgment is obtained through collusion or. fraud against the state, the same may be set aside and vacated at the suit of the state any time within five years thereafter” — in which connection it is argued that, if the state may institute its suit within five years to vacate such a judgment on the ground of fraud or collusion, it should be permitted in the first instance to join with its vendee in a suit against one claiming adversely to him so as to prevent a fraudulent or collusive judgment. This argument might with force be addressed to the Legislature for the enactment of such a statute, but it cannot be said that the act under review makes any such provision. That the act of 1905 denies any force to a judgment in such a case as against the state until after, the lapse of a period of five years, that it expressly authorizes suit by the state to vacate the judgment within that time, and otherwise makes it conclusive, precludes rather than sustains the view, in our opinion, that the intention of the act of 1900 was to authorize the original joinder of the state as plaintiff with its vendee in such a suit.

We do not wish to be understood as holding that section 8 of the act of 1900 limits the right of the state to institute suits only for the recovery of such lands as are referred to in the act, and to lay the venue of only such suits in Travis county. The provision in the section authorizing the institution by the Attorney General in Travis county of suits “affecting the title to such lands, or right growing out of the same,” might properly be held to apply to certain classes of suits other than for the recovery of such lands. We confine our opinion to the case before us and hold that in this case the state was not a proper party.

We accordingly answer the first question in the negative, from which it follows that tiie venue of the suit was not properly laid in Travis county.

HAWKINS, J., did not participate in the decision of this case.  