
    GUENTHER v. ROBISON, Land Com’r, et al.
    (No. 1296 — 5370.)
    Commission of Appeals of Texas, Section A.
    June 5, 1929.
   HARVEY, P. J.

Under leave granted by the Supreme Court, the relator, Chas. F. Guenther, Jr., filed his application for mandamus to compel respondent, J. T. Robison, state land commissioner, to issue to relator a permit to explore for oil and gas certain land in Winkler county, which is alleged to be unsold public school land. After the filing of the application for mandamus the respondent filed motion seeking to have the leave to file withdrawn and the application dismissed. This motion has been referred to us, and we have heard arguments of counsel thereon.

The substance of the fact averments of the application for mandamus, so far as necessary to be stated here, is as follows:

In the year 1906 the land in question belonged to the public school fund. In that year the state sold the land to one R. D. Dorward, who executed his obligations to the 'state for the unpaid purchase money as prescribed by law. The land was sold to Dor-ward under the classification of dry grazing land. By mesne conveyances the land passed from Dorward to Ida Hendrick, wife of T. H. Hendrick. In September, 1925, several annual interest installments on the purchase-money debt due the state were past due and unpaid. The land commissioner duly declared the land forfeited for nonpayment of interest.. Ida Hendrick, who owned the land in her separate right, at the time of the forfeiture, did not seek to repurchase the land. Her husband did make application to repurchase, as owner of the land at the time of the forfeiture, and the land was awarded to him as such in March, 1926. Deeds showing Mrs. Hendrick to have been the owner of the land at the time of said forfeiture was on file in the land office, along with the application of T. H. Hendrick, at . the time of such award, and at the time patent thereon was issued as hereinafter stated. The proceedings relative to the application of T. H. Hendrick and the award to him conformed to the requirements of the statutes which relate to the repurchase, by the “owner” at the time of forfeiture, of school land which had been forfeited for nonpayment of interest. In January, 1927, the relator made application to the land commissioner for a permit to explore said land for oil and gas. He complied with all statutory .requirements in that respect. The land commissioner refused to grant the permit. Some time afterwards, a patent for the land, based upon the sale to T. H. Hendrick in March, 1926, was issued in due form to the assignee of Hendrick.

The claimants under the patent are parties to this mandamus proceeding, as co-respondents. The patent still is outstanding, and the rights of the claimants thereunder are not shown to have been adjudicated. This proceeding for mandamus originated after the patent was issued. The respondent’s motion to- dismiss the proceeding is based solely on the ground that said patent has been issued and still outstands. The relator insists that because T. H. Hendrick was not the “owner” of the land at the time of the forfeiture for nonpayment of interest, and because such fact appeared of record in the land office when the award to him was made, the award was and is void, and the land is subject to relator’s application for an oil and gas permit. He further claims that because of the above facts the patent is void, and therefore cannot furnish ground for dismissal of his application for mandamus.

The authority to execute patents to land emanating from the state is placed by law in the Governor and the land commissioner. A consideration of this motion does not call for an inquiry as to the valid exercise of this authority in respect of the particular patent in question, but the controlling question is whether authority to annul the instrument, after execution thereof has been completed by issuance, is held by the land commissioner. ' Conceding that the acts of the Governor and the land commissioner, relating to the patent, were of a ministerial nature, nevertheless the patent, prior to the commencement of this proceeding for mandamus, had become a muniment of title. No law can be found which undertakes to authorize the land commissioner, except at the instance of patent holders'in cases specified in the statutes, to annul any patent which has been fully executed by the proper officials. This requires the exercise of judicial authority. No such authority appertains to his office, and no duty in this respect rests upon him. The patent in question stands as a harrier to the issuance of the permit sought by the relator. The title evidenced by the patent cannot be adjudicated in this proceeding. Ray v. Robison, 16 S.W. (2d) 541 (recently decided by the Supreme Court); Fitzgerald v. Robison, 110 Tex. 468, 220 S. W. 768; O’Keefe v. Robison, 116. Tex. 398, 292 S. W. 854.

The case of .Tones v. Robison, 104 Tex. 70, 133 Tex. 879, is distinguishable on principle from the instant case, and those cited above, by the important fact that the patent involved in the Tones Case was issued after the jurisdiction of the Supreme Court had attached to the subject-matter of the controversy.

If the patent in question be void as claimed, and if the relator be vested with prior rights which are injuriously affected, a remedy is available; but that remedy does not lie in the present proceeding.

We recommend that the leave to file the application for mandamus be withdrawn and the application dismissed.

CURETON, C. T. The opinion of the Commission of Appeals is adopted, and the application for mandamus dismissed.  